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Exhibit 4.1
DRAFT OF 1/27/98
FOR DISCUSSION PURPOSES ONLY
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DEPOSIT AGREEMENT
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by and among
CONSORCIO ECUATORIANO
DE TELECOMUNICACIONES S.A. CONECEL
AND
BANKERS TRUST COMPANY
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES
EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of ________, 1998
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS...............................................................................1
SECTION 1.01. Affiliate..........................................................................1
SECTION 1.02. American Depositary Receipt(s) and Receipt(s)......................................1
SECTION 1.03. American Depositary Share(s) and ADS(s)............................................2
SECTION 1.04. ADS Record Date....................................................................2
SECTION 1.05. Beneficial Owner...................................................................2
SECTION 1.06. Business Day.......................................................................2
SECTION 1.07. Commission.........................................................................2
SECTION 1.08. Company............................................................................2
SECTION 1.09. Corporate Trust Office.............................................................2
SECTION 1.10. Custodian .........................................................................2
SECTION 1.11. Deposit Agreement..................................................................2
SECTION 1.12. Depositary.........................................................................2
SECTION 1.13. Deposited Securities...............................................................3
SECTION 1.14. Dollars; $; and Sucres.............................................................3
SECTION 1.15. Foreign Registrar..................................................................3
SECTION 1.16. Holder ............................................................................3
SECTION 1.17. Pre-Release........................................................................3
SECTION 1.18. Registrar .........................................................................3
SECTION 1.19. Restricted Securities..............................................................3
SECTION 1.20. Securities Act.....................................................................3
SECTION 1.21. Securities Exchange Act............................................................3
SECTION 1.22. Shares ............................................................................3
SECTION 1.23. Trust Agreement....................................................................4
SECTION 1.24. Trustee ...........................................................................4
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ARTICLE 2 APPOINTMENT OF DEPOSITARY, FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS .............................4
SECTION 2.01. Appointment of Depositary..........................................................4
SECTION 2.02. Form and Transferability of Receipts...............................................4
SECTION 2.03. Deposit of Shares..................................................................5
SECTION 2.04. Execution and Delivery of Receipts.................................................6
SECTION 2.05. Transfer of Receipts; Combination and Split-up of Receipts.........................7
SECTION 2.06. Surrender of Receipts and Withdrawal of Deposited Securities.......................7
SECTION 2.07. Limitations on Execution and Delivery, Transfer and Surrender of Receipts..........8
SECTION 2.08. Lost Receipts, etc.................................................................9
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts...............................9
SECTION 2.10. Pre-Release of Receipts...........................................................10
SECTION 2.11. Maintenance of Records............................................................10
ARTICLE 3 CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS.........................11
SECTION 3.01. Filing Proofs, Certificates and Other Information.................................11
SECTION 3.02. Liability of Holders or Beneficial Owners for Taxes...............................11
SECTION 3.03. Representations and Warranties on Deposit of Shares...............................12
SECTION 3.04. Disclosure of Interests...........................................................12
ARTICLE 4 THE DEPOSITED SECURITIES.................................................................13
SECTION 4.01. Cash Distributions................................................................13
SECTION 4.02. Distributions Other Than Cash, Shares or Rights...................................13
SECTION 4.03. Distributions in Shares...........................................................14
SECTION 4.04. Rights ...........................................................................14
SECTION 4.05. Conversion of Foreign Currency....................................................16
SECTION 4.06. Fixing of ADS Record Date.........................................................17
SECTION 4.07. Voting of Deposited Securities....................................................17
SECTION 4.08. Changes Affecting Deposited Securities............................................18
SECTION 4.09. Available Information.............................................................18
SECTION 4.10. Reports ..........................................................................18
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SECTION 4.11. Lists of Holders..................................................................19
SECTION 4.12. Withholding.......................................................................19
SECTION 4.13. Taxation..........................................................................19
ARTICLE 5 THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY..........................................20
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary........................20
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the Company...............20
SECTION 5.03. Obligations of the Depositary and the Company.....................................21
SECTION 5.04. Resignation and Removal of the Depositary.........................................22
SECTION 5.05. Custodians........................................................................22
SECTION 5.06. Notices and Reports...............................................................23
SECTION 5.07. Issuance of Additional Shares, ADSs etc...........................................23
SECTION 5.08. Indemnification; Reimbursement....................................................24
SECTION 5.09. Charges of Depositary.............................................................25
SECTION 5.10. Retention of Depositary Documents.................................................26
SECTION 5.11. Exclusivity.......................................................................26
SECTION 5.12. List of Restricted Securities Holders.............................................26
SECTION 5.13. The Trust Agreement...............................................................26
ARTICLE 6 AMENDMENT AND TERMINATION................................................................27
SECTION 6.01. Amendment.........................................................................27
SECTION 6.02. Termination.......................................................................27
ARTICLE 7 MISCELLANEOUS............................................................................28
SECTION 7.01. Counterparts......................................................................28
SECTION 7.02. No Third Party Beneficiaries......................................................28
SECTION 7.03. Severability......................................................................29
SECTION 7.04. Holders and Beneficial Owners as Parties; Binding Effect..........................29
SECTION 7.05. Notices...........................................................................29
SECTION 7.06. Governing Law.....................................................................29
SECTION 7.07. Assignment........................................................................30
SECTION 7.08. Compliance with U.S. Securities Laws..............................................31
SECTION 7.09. Titles ...........................................................................31
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EXHIBIT A FORM OF AMERICAN DEPOSITARY RECEIPT....................................................1
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DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT is made as of _______________, 1998, by
and among CONSORCIO ECUATORIANO DE TELECOMUNICACIONES S.A. CONECEL, a company
incorporated under the laws of the Republic of Ecuador (the "Company"), BANKERS
TRUST COMPANY, a bank organized under the laws of the State of New York, United
States of America, and all Holders and Beneficial Owners from time to time of
American Depositary Shares (as herein defined) evidenced by Receipts (as defined
herein) issued hereunder.
W I T N E S S E T H T H A T:
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WHEREAS, the Company desires to provide for (i) the deposits
of Shares (as hereinafter defined) from time to time with the Depositary or the
Custodian (as defined herein), as agent of the Depositary, for the purposes set
forth in the Deposit Agreement and (ii) the execution and delivery of Receipts
evidencing the American Depositary Shares representing the Shares so deposited;
and
WHEREAS, the American Depositary Shares to be issued pursuant
to the terms of this Deposit Agreement are to be listed on The New York Stock
Exchange, Inc.; and
WHEREAS, the Board of Directors of the Company (or an
authorized committee thereof) has duly approved the establishment of an American
Depositary Receipts facility upon the terms set forth in this Deposit Agreement,
the execution and delivery of the Deposit Agreement on behalf of the Company,
and the actions of the Company and the transactions contemplated therein.
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise clearly indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION 1.01. "AFFILIATE" means a person or entity that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, another entity.
SECTION 1.02. "AMERICAN DEPOSITARY RECEIPT(S)" AND
"RECEIPT(S)" mean the American Depositary Receipt(s) issued hereunder
substantially in the form of Exhibit A hereto and evidencing American Depositary
Shares, as such American Depositary Receipts may be amended from time to time. A
Receipt may represent any number of American Depositary Shares.
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SECTION 1.03. "AMERICAN DEPOSITARY SHARE(S)" and "ADS(S)" mean
the securities representing the interests in the Deposited Securities and
evidenced by the Receipts issued hereunder. Each American Depositary Share shall
represent the right to receive one (1) Share, until there shall occur a
distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
Receipts are not executed and delivered, and thereafter the American Depositary
Shares shall evidence the right to receive the amount of Shares or Deposited
Securities specified in such Sections.
SECTION 1.04. "ADS RECORD DATE" has the meaning set forth in
Section 4.06.
SECTION 1.05. "BENEFICIAL OWNER" means each person owning from
time to time a beneficial interest in the American Depositary Shares evidenced
by any Receipt. A Beneficial Owner may or may not be the Holder of the Receipt
evidencing such ADSs. A Beneficial Owner shall be able to exercise any right or
receive any benefit hereunder solely through the person who is the Holder of the
Receipt(s) evidencing the ADSs owned by such Beneficial Owner.
SECTION 1.06. "BUSINESS DAY" means any day on which both banks
in New York, New York and banks in Ecuador are not required or authorized by law
to close.
SECTION 1.07. "COMMISSION" means the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.08. "COMPANY" means Consorcio Ecuatoriano de
Telecomunicaciones S.A. CONECEL, a company incorporated under the laws of the
Republic of Ecuador, having its principal executive office at Amazonas 6017 y
Rio Coca, Quito, Ecuador, and its successors.
SECTION 1.09. "CORPORATE TRUST OFFICE" means the office of the
Depositary at which its Depositary Receipts business shall be principally
administered, which at the date of this Deposit Agreement is 0 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.10. "CUSTODIAN" means Banco La Previsora S.A., as
agent of the Depositary for the purposes of this Deposit Agreement, and any
other firm or corporation which may hereafter be appointed by the Depositary
pursuant to the terms of Section 5.05, as substitute or additional custodian or
custodians hereunder, and shall also mean (as the context shall require) all of
them collectively.
SECTION 1.11. "DEPOSIT AGREEMENT" means this Deposit
Agreement, as the same may be amended from time to time in accordance with the
provisions hereof.
SECTION 1.12. "DEPOSITARY" means Bankers Trust Company, a New
York banking corporation, and any successor as depositary hereunder.
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SECTION 1.13. "DEPOSITED SECURITIES" as of any time mean
Shares at such time deposited or deemed to be deposited under this Deposit
Agreement and any and all other securities, property and cash received by the
Depositary or the Custodian in respect thereof and at such time held hereunder,
subject as to cash to the provisions of Section 4.05. The collateral delivered
in connection with Pre-Release transactions described in Section 2.10 hereof
shall not constitute Deposited Securities.
SECTION 1.14 "DOLLARS"; "$"; and "SUCRES" The terms "Dollars"
and "$" shall mean the lawful currency of the United States. The term "Sucres"
shall mean the lawful currency of the Republic of Ecuador.
SECTION 1.15. "FOREIGN REGISTRAR" means the Company or any
other entity that presently carries out the duties of registrar for the Shares
or any successor as registrar for the Shares and any other appointed agent of
the Company for the transfer and registration of the Shares.
SECTION 1.16 "HOLDER" means the person in whose name a Receipt
is registered on the books of the Depositary (or the Registrar (as hereinafter
defined), if any) maintained for such purpose. A Holder may or may not be a
Beneficial Owner. If a Holder is not the Beneficial Owner of the ADSs evidenced
by the Receipt registered in its name, such person shall be deemed to have all
requisite authority to act on behalf of the Beneficial Owners of such ADSs.
SECTION 1.17 "PRE-RELEASE" has the meaning set forth in
Section 2.10 hereof.
SECTION 1.18. "REGISTRAR" means the Depositary, or any bank or
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed by the Depositary to register Receipts and
transfers of Receipts as herein provided.
SECTION 1.19. "RESTRICTED SECURITIES" mean American Depositary
Shares, Shares, Receipts or Deposited Securities which are "restricted
securities" as such term is defined in Rule 144(a)(3) promulgated under the
Securities Act, or which are held by an officer, director (or persons performing
similar functions) or other Affiliate of the Company or which are subject to
restrictions on sale or deposit under the laws of the United States (including
without limitation the Securities Act) or Ecuador or under a shareholder
agreement or the Bylaws of the Company.
SECTION 1.20. "SECURITIES ACT" means the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.21. "SECURITIES EXCHANGE ACT" means the United
States Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.22. "SHARES" means the Shares of the Company's Class
B Common Stock, par value 1,000 Sucres per share, validly issued and outstanding
and fully paid, nonassessable and free of any preemptive rights of the holders
of outstanding Shares or evidence
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of the right to receive such Shares. If there shall occur any change in the
nominal or par value, split-up, consolidation or any other reclassification of
the Shares or, upon the occurrence of any event described in Section 4.08, an
exchange or conversion in respect of the Shares, the term "Shares" shall,
subject to applicable law, mean the resulting securities.
SECTION 1.23. "TRUST AGREEMENT" means that certain Trust
Agreement entered into under the terms of Section 5.13 of this Deposit
Agreement, between the Trustee and the Depositary as Principal, in favor of
certain Holders and Beneficial Owners of Deposited Securities from time to time,
as such Trust Agreement may be extended from time to time.
SECTION 1.24. "TRUSTEE" means a corporation organized under
the laws of The Republic of Ecuador, appointed as Trustee under the Trust
Agreement.
ARTICLE 2
APPOINTMENT OF DEPOSITARY, FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. APPOINTMENT OF DEPOSITARY. 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. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement, shall be deemed for all purposes to (a) be a
party to and bound by the terms of this Deposit Agreement and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in this Deposit Agreement,
to adopt any and all procedures necessary to comply with applicable law and to
take such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement (the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
SECTION 2.02. FORM AND TRANSFERABILITY OF RECEIPTS. Receipts
shall be substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt
shall have been executed by the Depositary by the manual or facsimile signature
of a duly authorized signatory of the Depositary; PROVIDED, HOWEVER, that, if a
Registrar for the Receipts shall have been appointed, such Receipts shall be
countersigned by the manual signature of a duly authorized officer of the
Registrar. Such signature of any Receipt by manual signature shall be conclusive
evidence, and the only evidence, that such Receipt has been duly executed and
delivered hereunder. The Depositary shall maintain books on which each Receipt
so executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts. The Receipts issued hereunder shall bear a CUSIP
number that is
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different from any CUSIP number that was, is or may be assigned to any
depositary receipts previously or subsequently issued pursuant to any other
arrangement between the Depositary (or any other depositary) and the Company
which are not receipts issued hereunder.
The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be reasonably required by the
Depositary in order for the Depositary to perform its duties under this Deposit
Agreement, or required to comply with any applicable law or regulations or with
the rules and regulations of any securities exchange upon which the ADSs issued
hereunder may be listed or to conform with any usage with respect thereto or
required by any book-entry system by which ADSs issued hereunder may be
transferred, 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.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by properly executed
instruments of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of the State of New
York (subject to satisfying the requirements of this Deposit Agreement);
PROVIDED, HOWEVER, that the Depositary, notwithstanding any notice to the
contrary, may treat the Holder thereof as the absolute Holder thereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes. Neither the Company nor the Depositary shall have any
obligation under the terms hereof to any beneficial owner or holder of any
Receipt issued pursuant to the Deposit Agreement unless such person is
registered as the Holder thereof.
SECTION 2.03. DEPOSIT OF SHARES. Subject to the terms and
conditions of this Deposit Agreement and applicable law, Shares may be deposited
by physical (and if available, book-entry) delivery thereof to any Custodian
hereunder, accompanied by any appropriate instrument or instruments of transfer
or endorsement, in form satisfactory to the Custodian, together with all such
certifications, payments (including, without limitation, amounts in respect of
any applicable transfer taxes and the fees and charges of the Depositary set
forth herein) and evidence of such payments as may be required by the Depositary
or the Custodian in accordance with the provisions of this Deposit Agreement,
and, if the Depositary so requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied by evidence satisfactory to the Depositary that
any necessary approvals have been waived or granted by any governmental or
quasi-governmental body in the Republic of Ecuador, including, without
limitation, any such body which is then performing the function of regulation of
currency exchange. If required by the Depositary, Shares presented for deposit
at any time, whether or not the transfer books of the Company or the Foreign
Registrar, if applicable, are closed, shall also be accompanied by an agreement
or assignment, or other instrument satisfactory to the Depositary, which will
provide for the prompt transfer to the Custodian, the Depositary, the Trustee or
their respective nominees of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the
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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. If the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, the Depositary shall also require a proxy or proxies entitling the
Custodian to exercise voting rights in respect of such Shares for any and all
purposes until the Shares so deposited are registered in the name of the
Depositary, the Custodian, the Trustee or any nominee of either of them.
Upon each delivery to a Custodian of a certificate or
certificates for Shares to be deposited hereunder, together with the other
documents above specified, such Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to the
Company or the Foreign Registrar, if applicable, for transfer and recordation of
the Shares being deposited in the name of the Depositary, the Custodian, the
Trustee or their respective nominees at the cost and expense of the person
making such deposit (or for whose benefit such deposit is made).
Notwithstanding anything herein to the contrary, the
Depositary shall have no obligation to accept Shares for deposit hereunder from
any person or entity identified by the Company as holding Restricted Securities.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine. Without limiting the
generality of the foregoing, the Depositary may direct the Custodian to deposit
the Deposited Securities into a trust established under the laws of the Republic
of Ecuador for the benefit of Holders and Beneficial Owners of ADSs. The
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit any fractional Shares nor a number of Shares which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
SECTION 2.04. EXECUTION AND DELIVERY OF RECEIPTS. Upon receipt
by any Custodian of any deposit pursuant to Section 2.03 hereunder (and in
addition, if the transfer books of the Company or the Foreign Registrar, if
applicable, are open, the Depositary may in its sole discretion require a proper
acknowledgment or other evidence from the Company or the Foreign Registrar that
any Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary, the Custodian,
the Trustee or their respective nominees), together with the other documents
required as above specified, such Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written order a Receipt
or Receipts are deliverable in respect thereof and the number of American
Depositary Shares to be evidenced thereby. Such notification shall be made by
letter or, at the request, risk and expense of the person making the deposit, by
cable, telex or facsimile transmission. Upon receiving such notice from such
Custodian (or if applicable the Trustee), the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only
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upon payment to the Depositary of the fees and expenses of the Depositary for
the execution and delivery of such Receipt or Receipts as provided in Section
5.09, and of all taxes (including, without limitation, amounts in respect of any
applicable transfer taxes) and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited Securities.
Nothing in this Section shall be interpreted to prohibit
Pre-Release as defined in Section 2.10 hereof.
SECTION 2.05. TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP
OF RECEIPTS. The Depositary, subject to the terms and conditions of this Deposit
Agreement shall register transfers of Receipts on its transfer books, as
promptly as practicable, upon any surrender of a Receipt at the Corporate Trust
Office of the Depositary, by the Holder in person or by a 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.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any number of American Depositary Shares
requested, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
The Depositary may, after consultation with the Company,
appoint one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary.
SECTION 2.06. SURRENDER OF RECEIPTS AND WITHDRAWAL OF
DEPOSITED SECURITIES. Upon surrender at the Corporate Trust Office of the
Depositary of a Receipt for the purpose of withdrawal of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, and upon payment of the fees of the Depositary for the surrender of
Receipts as provided in Section 5.09 and payment of all taxes and governmental
charges payable in connection with such surrender and withdrawal of the
Deposited Securities, and subject to the terms and conditions of this Deposit
Agreement, the Company's Bylaws, the Holder of such Receipt shall be entitled to
delivery, to him or upon his order, at the principal office of the Custodian of
the amount of Deposited Securities at the time represented by the American
Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by (a)(i) the delivery of certificates in the name of
such Holder or as ordered by him or certificates properly endorsed or
accompanied by proper instruments of transfer to such Holder or as ordered by
him or (ii) book-entry transfer (if available) of Shares represented by the
American Depositary Shares evidenced by such Receipt to an account in the name
of such Holder or as ordered by him, and (b) delivery of any other securities,
property and cash to which
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such Holder is then entitled in respect of such Receipts to such Holder or as
ordered by him. Such delivery shall be made, as hereinafter provided, without
unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by properly executed
instruments of transfer in blank, and if the Depositary so requires, the Holder
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be delivered
to or upon the written order of a person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the principal
office of such Custodian, subject to Sections 2.07, 3.01 and 3.02 this Deposit
Agreement, to or upon the written order of the person or persons designated in
the order delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or other cash
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary shall not accept for surrender a Receipt
evidencing American Depositary Shares representing less than one Share. In the
case of surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be delivered in
accordance with the terms hereof, and shall issue and deliver to the person
surrendering such Receipt a new Receipt evidencing American Depositary Shares
representing any remaining fractional Share.
At the request, risk and expense of any Holder so surrendering
a Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
No surrender of Receipts for the purpose of withdrawal of
Deposited Securities shall be accepted unless accompanied by evidence
satisfactory to the Depositary that all necessary filings have been made and
approvals have been obtained (or in each case, have been properly waived) under
the laws of the Republic of Ecuador.
SECTION 2.07. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS. As a condition precedent to the execution and
delivery, registration, registration of IPTS. transfer, split-up, combination or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary, the Custodian or the Registrar may require payment from the
depositor of the Shares or the presenter of the Receipt of a sum sufficient to
reimburse it for any tax (including, without limitation, amounts in respect of
any applicable transfer taxes) or
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other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees as herein
provided, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature, may require proof of compliance with
any applicable notice, consent or other requirements relating to the acquisition
of securities of Ecuadorian companies, and may also require compliance with any
regulations the Depositary may establish consistent with the provisions of this
Deposit Agreement and applicable law, including, without limitation, this
Section 2.07.
The delivery of Receipts against deposit of Shares generally
or against deposit of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts or the combination or split-ups of Receipts, generally
may be suspended, during any period when the transfer books of the Depositary
are closed, or if any such action is deemed necessary or advisable by the
Depositary or the Company in their reasonable discretion at any time or from
time to time because of any requirement of law or of any government or
quasi-governmental body or commission or any securities exchange or automated
quotation system on which the American Depositary Shares may be listed, or under
any provision of this Deposit Agreement or the Receipts, or for any other
reason, subject to the provisions of the following sentence. Notwithstanding
anything to the contrary in this Deposit Agreement or the Receipts, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may be
suspended, only as permitted in General Instruction I.A.(1) to Form F-6 (as such
instructions may be amended from time to time) in connection with (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting, or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
and (iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares.
SECTION 2.08. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a
new Receipt of like tenor in exchange and substitution for such mutilated
Receipt at the expense of the Holder thereof and upon cancellation thereof, or
in lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in substitution
for a destroyed, lost or stolen Receipt, the Holder thereof shall have (a) filed
with the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) evidence satisfactory to the Depositary of such destruction,
loss or theft and of the Holder's ownership thereof, (b) furnished a sufficient
indemnity bond and (c) satisfied any other reasonable requirements imposed by
the Depositary.
SECTION 2.09. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is
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authorized to destroy Receipts so cancelled. Cancelled Receipts shall not be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose.
SECTION 2.10. PRE-RELEASE OF RECEIPTS. The Depositary may
issue Receipts against evidence of the right to receive Shares from the Company.
No such issuance of Receipts shall be deemed a Pre-Release (as defined below).
Notwithstanding Section 2.04 hereof, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.03 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.06, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts or Shares are to be delivered, that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Release
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
PROVIDED, HOWEVER, that the Depositary reserves the right to change or disregard
such limit from time to time as it reasonably deems appropriate, and may change
such limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Releasee on a case-by-case basis as the
Depositary reasonably deems appropriate. For purposes of enabling the Depositary
to fulfill its obligations to the Holders under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.11. 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 2.06, substitute Receipts delivered
under Section 2.08, and of cancelled or destroyed Receipts under Section 2.09,
in accordance with procedures ordinarily followed by stock transfer agents
located in The City of New York or as required by the laws or regulations
governing the Depositary.
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ARTICLE 3
CERTAIN OBLIGATIONS OF HOLDERS AND
BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER
INFORMATION. Any person presenting Shares for deposit or any Holder or
Beneficial Owner of a Receipt may be required from time to time (i) to file with
the Depositary or the Custodian such proof of citizenship or residence, exchange
control approval, payment of applicable taxes or other governmental charges,
legal or beneficial ownership of Receipts, Deposited Securities or other
securities, compliance with all applicable laws or regulations or terms of this
Deposit Agreement or the Receipts, or such information relating to the
registration on the books of the Company or the Foreign Registrar, if
applicable, or any other information the Custodian, the Depositary, the Company
or the Trustee may deem necessary or appropriate as evidence of compliance with
all applicable laws and regulations, and (ii) to execute such certificates and
to make such representations and warranties, as the Depositary may deem
necessary or appropriate. Any such person shall be required to comply with
requests by the Company for information as to the capacity in which such person
owns Receipts and Shares, the identity of any other person interested in any
such Receipt or Share, and the nature of such interest. The Depositary may
withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or distribution of rights or of the sale proceeds
thereof or, subject to the terms of Section 7.08 hereof, the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made to the
Depositary's reasonable satisfaction.
SECTION 3.02. LIABILITY OF HOLDERS OR BENEFICIAL OWNERS FOR
TAXES. If any tax (including, without limitation, any transfer taxes) or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities represented by any Receipt, such tax or other governmental
charge shall be payable by the Holder or Beneficial Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer (or any combination
or split-up) of such Receipt or, subject to the terms of Section 7.08 hereof,
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Holder and
Beneficial Owner thereof any part or all of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Holder or Beneficial Owner of such
Receipt shall remain liable for any deficiency.
Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and any of their agents, officers,
employees and Affiliates for, and to hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
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SECTION 3.03. REPRESENTATIONS AND 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 duly authorized, validly issued, fully paid, non-assessable,
legally obtained by such person, and free of any preemptive rights of the
holders of outstanding Shares and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
such Shares and the Receipts evidencing American Depositary Shares representing
such Shares are (a) not Restricted Securities and (b) not subject to any
unfulfilled requirements of Ecuadorian law. Such representations and warranties
shall survive the deposit of Shares and issuance of Receipts. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares and in their sole and absolute discretion, to take any and all actions
necessary to correct the consequences thereof.
SECTION 3.04. DISCLOSURE OF INTERESTS. Notwithstanding any
other provision of this Deposit Agreement, the Bylaws of the Company or
applicable Ecuadorian law, each Holder and Beneficial Owner agrees to (a)
provide such information as the Company may request pursuant to Ecuadorian law
(including, without limitation, the Ecuadorian Civil Code, the Ecuadorian
Commercial Code and the Ecuadorian Ley de Companias (Companies' Law), any
applicable law of the United States, the Company's Bylaws, any resolutions of
the Company's Board of Directors adopted pursuant to such Bylaws, the
requirements of any markets or exchanges upon which the ADSs or Receipts are
listed or traded, or to any requirements of any electronic book-entry system by
which the ADSs or Receipts may be transferred, and (b) be bound by and subject
to applicable provisions of the Ecuadorian laws, the Bylaws of the Company and
the requirements of any markets or exchanges upon which the ADSs, Receipts or
Shares are listed or traded, or pursuant to any requirements of any electronic
book-entry system by which the ADSs, Receipts or Shares may be transferred, to
the same extent as if such Holder and Beneficial Owner held Shares directly.
Failure by a Holder or Beneficial Owner to provide in a timely
fashion the information requested by the Company may, in the Company's sole
discretion, result in the withholding of certain rights in respect of such
Holder or Beneficial Owner's American Depositary Shares (including voting rights
and certain rights as to dividends in respect of the Shares represented by such
American Depositary Shares). The Depositary agrees to comply with any
instructions received from the Company requesting that the Depositary take the
actions specified therein to obtain such information.
In the event that the Company determines that there has been a
failure to comply with the applicable requirements under Ecuadorian law and the
Company's Bylaws applicable to any Deposited Securities and that sanctions are
to be imposed against such Deposited Securities pursuant Ecuadorian law by a
court of competent jurisdiction, or pursuant to the Company's Bylaws by the
Company, the Company shall inform the Depositary thereof. The Company may, from
time to time, in its discretion but subject to applicable law, instruct the
Depositary to take action with respect to such sanctions, including but not
limited to the refusal by the Depositary to take into account any voting
instructions received in respect of the ADSs representing such Deposited
Securities, if and to the extent that such refusal is permitted by applicable
law. The
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Depositary shall, at the sole expense of the Company, use its reasonable efforts
to comply with the reasonable written instructions of the Company as provided in
this Section. The Depositary shall have no liability for any action taken in
accordance with such instructions.
ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary
shall receive any cash dividend or other cash distribution on any Deposited
Securities, the Depositary shall establish an ADS Record Date pursuant to
Section 4.06 hereof and shall, subject to the provisions of Section 4.05,
convert such dividend or distribution into Dollars (if not paid in Dollars), as
promptly as practicable, and shall distribute the amount thus received (net of
the fees and expenses of the Depositary as provided in Section 5.09 and any
taxes or other governmental charges paid in conjunction with such conversion),
as promptly as practicable, to the Holders as of the ADS Record Date, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; PROVIDED, HOWEVER, that in the
event that the Company or the Depositary shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes, the amount distributed to the Holder of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Holders entitled thereto, and any balance not so
distributable shall be retained by the Depositary (without liability for
interest thereon) for inclusion with funds received by the Depositary thereafter
in respect of the Deposited Securities for distribution to Holders of Receipts
then outstanding. The Company or its agent will remit to the appropriate
governmental agency in Ecuador all amounts withheld and owing to such agency.
The Depositary will forward to the Company or its agent such information from
its records as the Company may reasonably request to enable the Company or its
agent to file necessary reports with governmental agencies. The Company shall,
if so requested, provide to the Depositary evidence of the payment to the
applicable governmental body of any amounts withheld on account of taxes. The
Depositary or the Company or their respective agents may (but shall not be
obligated to) file any reports necessary to obtain benefits under the applicable
tax treaties for the Holders of Receipts.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS.
Subject to the provisions of Sections 4.12 and 5.09, whenever the Depositary
shall receive any distribution other than a distribution described in Section
4.01, 4.03 or 4.04, the Depositary shall establish an ADS Record Date pursuant
to the terms of Section 4.06 hereof, and shall cause the securities or property
received by it to be distributed as promptly as practicable to the Holders as of
the ADS Record Date, after deduction or upon payment of any fees and expenses of
the Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; PROVIDED, HOWEVER, that if in
the opinion of the Depositary such distribution cannot be made
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proportionately among the Holders entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Holders) the Depositary deems such distribution not
to be practicable, the Depositary may adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including, but
not limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the proceeds of any such sale (net of the
fees and expenses of the Depositary as provided in Section 5.09 and any taxes or
other governmental charges paid in conjunction with such sale or distribution)
shall be distributed by the Depositary to the Holders entitled thereto, all in
the manner and subject to the conditions described in Section 4.01.
SECTION 4.03. DISTRIBUTIONS IN SHARES. If any distribution
upon any Deposited Securities consists of a dividend in, or free distribution
of, Shares, the Depositary shall establish an ADS Record Date pursuant to the
terms of Section 4.06 hereof, and may, and will if the Company so requests,
distribute as promptly as practicable to the Holders of outstanding Receipts as
of the ADS Record Date, in proportion to the number of American Depositary
Shares held by them respectively, additional Receipts evidencing an aggregate
number of American Depositary Shares representing the amount of Shares received
as such dividend or free distribution, subject to the terms and conditions of
this Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.12 and the payment
of the fees and expenses of the Depositary as provided in Section 5.09. The
Depositary may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act or is exempt from registration under the
provisions of the Securities Act. In lieu of delivering Receipts for fractional
American Depositary Shares the Depositary may, in its discretion, sell the
amount of Shares represented by the aggregate of such fractions, at public or
private sale, at such place or places and upon such terms as it may deem proper,
and distribute the net proceeds of any such sale in accordance with Section
4.01. If additional Receipts are not so distributed (except as pursuant to the
preceding sentence), each American Depositary Share shall thenceforth also
represent its proportionate interest in the additional Shares so distributed
upon such Deposited Securities.
SECTION 4.04. RIGHTS. In the event that 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 other nature, the
Depositary shall, upon receipt of timely notice thereof and after consultation
with the Company, have discretion as to the procedure to be followed in making
such rights available to any Holders or in disposing of such rights on behalf of
any Holders and making the net proceeds available to such Holders or, if by the
terms of such rights offering or for any other reason, the Depositary may not
either make such rights available to any Holders or dispose of such rights and
make the net proceeds available to such Holders, then the Depositary shall allow
the rights to lapse. If at the time of the offering of any rights, the
Depositary determines in its reasonable discretion that it is lawful and
practicable to make such rights available to all or certain Holders but not to
other Holders, the Depositary may distribute
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to any Holder to whom it determines the distribution to be lawful and
practicable, in proportion to the number of American Depositary Shares held by
such Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be
distributed, if a Holder of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the Shares
evidenced by the American Depositary Shares held by such Holder hereunder, the
Depositary will make such rights available to such Holder upon written notice
from the Company to the Depositary that the Company has elected in its sole
discretion to permit such rights to be exercised.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary to
exercise such rights, upon payment by such Holder to the Depositary for the
account of such Holder of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Holder. As agent
for such Holder, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.03 of this Deposit Agreement, and shall,
pursuant to Section 2.04 of this Deposit Agreement, execute and deliver Receipts
to such Holder.
If the Depositary determines in its reasonable discretion that
it is not lawful and feasible to make such rights available to all or certain
Holders, it may sell the rights, warrants or other instruments in proportion to
the number of American Depositary Shares held by the Holders to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of this Deposit Agreement) for the account of such Holders otherwise entitled to
such rights, warrants or other instruments, 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 otherwise.
Any such proceeds shall be distributed in accordance with Section 4.01 hereof.
The Depositary will not distribute rights to Holders unless
both the rights and the securities to which such rights relate are either exempt
from registration under the Securities Act of 1933 with respect to a
distribution to all Holders or are registered under the provisions of such Act;
PROVIDED, that nothing in this Deposit Agreement shall create, or be construed
to create, any obligation on the part of the Company or the Depositary to file a
registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If a
Holder of Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
acceptable to it
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from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Holder is exempt from such
registration.
Subject to Section 5.03 of this Deposit Agreement, the
Depositary shall not be responsible for any good faith failure to determine that
it may be lawful or feasible to make such rights available to Holders in general
or any Holder in particular.
There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to exercise rights on the
same terms and conditions as the holders of Shares or to exercise such rights.
SECTION 4.05. CONVERSION OF FOREIGN CURRENCY. Whenever the
Depositary or the Custodian shall receive foreign currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, and if at the time of the receipt thereof the foreign currency so
received can in the judgment of the Depositary be converted on a practicable
basis into Dollars and the resulting Dollars transferred to the United States,
the Depositary shall, as promptly as practicable, convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into Dollars and such Dollars (net of any fees, expenses, taxes or
other governmental charges incurred in the process of such conversion) shall be
distributed, as promptly as practicable, to the Holders entitled thereto or, if
the Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments 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,
the date of delivery of any Receipt 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 as promptly as practicable such application for approval or license,
if any, as it may deem necessary. Nothing herein shall obligate the Depositary
to file or cause to be filed, or to seek effectiveness of any such application
or license.
If at any time the Depositary shall determine that in its
reasonable judgment any foreign currency received by the Depositary or the
Custodian is not convertible on a practicable basis into Dollars transferable to
the United States, or if any approval or license of any government or agency
thereof which is required for such conversion is denied or in the opinion of the
Depositary is not readily obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may in its discretion, but subject to applicable laws and
regulations, either (i) distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to the Holders entitled to receive such foreign currency, or (ii)
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some of the Holders entitled
thereto, the Depositary may in its discretion, but
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subject to applicable laws and regulations, either (i) make such conversion and
distribution in Dollars to the extent permissible to the Holders entitled
thereto and (ii) distribute the balance of the foreign currency received by the
Depositary to, or hold such balance uninvested and without liability for
interest thereon for the respective accounts of, the Holders entitled thereto.
SECTION 4.06. FIXING OF ADS RECORD DATE. Whenever any cash
dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or whenever rights shall be issued with respect
to the Deposited Securities, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
find it necessary or convenient, the Depositary shall fix a record date (the
"ADS Record Date") as close as practicable to the record date fixed by the
Company with respect to the Shares (a) for the determination of the Holders who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) to act in respect of any
other matter or (b) on or after which each American Depositary Share will
represent the changed number of Shares. Subject to the provisions of Sections
4.01 through 4.05 and to the other terms and conditions of this Deposit
Agreement, the Holders at close of business in New York on such ADS Record Date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
SECTION 4.07. VOTING OF DEPOSITED SECURITIES. Holders of
Shares are not entitled to vote except with respect to any proposed change to
the terms and rights of the Shares (including, without limitation, the right to
receive dividends, liquidation rights and statutory preemption rights). The
Company agrees to timely advise the Depositary of any such changes to the terms
and rights of the Shares. Upon receipt of timely notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall establish an ADS Record Date pursuant to the
terms of Section 4.06, and, if requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Holders a
notice in English, the form of which notice shall be in the sole discretion of
the Depositary, which shall contain (a) such information as is contained in such
notice of meeting (or solicitation of consent or proxy) received by the
Depositary from the Company, (b) a statement that the Holders as of the ADS
Record Date will be entitled, subject to any applicable provision of Ecuadorian
law, the terms of this Deposit Agreement and of the Bylaws of the Company, to
instruct the Depositary as to the exercise of the voting rights (or rights to
consent or to grant a proxy) pertaining to the amount of Shares or other
Deposited Securities represented by their respective American Depositary Shares
and (c) a statement as to the manner in which such voting instructions may be
given. Upon the written instruction of a Holder as of such ADS Record Date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor, insofar as practicable, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt(s) in accordance with the
instructions set forth in such request. Neither the Depositary
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nor the Custodian shall, under any circumstances, exercise any discretion as to
voting, vote any number of Shares other than an integral number thereof, or vote
Shares in a manner that would be inconsistent with any applicable law.
Notwithstanding anything to the contrary in this Deposit Agreement, if the
Depositary is notified by the Company that applicable law prohibits the
Depositary, the Custodian, or the nominee(s) of either of them (if any), as the
holder of the Deposited Securities, from voting less than all of the Shares
registered in its name in the same manner, (i) the Depositary shall provide
notice thereof to all Holders as of the ADS Record Date in the statement
identified in (b) above, and (ii) Holders of ADSs shall be deemed, and the
Depositary shall deem such Holders, to have instructed the Depositary to vote
all of the Deposited Securities in accordance with the voting instructions
received in respect of the majority of ADSs for which voting instructions have
been received from the Holders of ADSs. Voting instructions in respect of any
ADS shall be deemed to have been received only if received in accordance with
the terms of this Deposit Agreement. The Company agrees to provide timely notice
to the Depositary enabling the timely notification of Holders in the statement
identified in (b) above as to limitations on the ability of the Depositary to
vote Deposited Securities in accordance with instructions from Holders.
SECTION 4.08. CHANGES AFFECTING DEPOSITED SECURITIES. In
circumstances where the provisions of Section 4.03 do not apply, upon any change
in nominal value or par value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities shall, to the extent permitted by applicable laws, be
treated as new Deposited Securities under this Deposit Agreement, and American
Depositary Shares shall (to the extent permitted by applicable law) thenceforth
represent, in addition to the existing Deposited Securities, the right to
receive the new Deposited Securities so received in exchange or conversion
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, but shall not without first receiving from
counsel of Company an opinion, which shall be satisfactory to the Depositary,
that such execution and delivery would not violate any applicable law or
regulation, execute and deliver additional Receipts as in the case of a dividend
in Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
SECTION 4.09. AVAILABLE INFORMATION. The Company is subject to
the reporting requirements of the Securities Act of 1934 applicable to foreign
private issuers and, in accordance therewith, files reports and other
information with the Commission. Such information may be inspected by Holders or
Beneficial Owners of Receipts and copied at public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx,
X.X.(Xxxx 0000), Xxxxxxxxxx, X.X. 00000.
SECTION 4.10. REPORTS. The Depositary shall make available for
inspection by Holders at its Corporate Trust Office any reports and
communications, including any proxy solicitation material, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
Trustee (or their respective nominees) as the holder of the Deposited
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Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary shall also send to the Holders copies
of such reports and communications when furnished by the Company pursuant to
Section 5.06.
SECTION 4.11. LISTS OF HOLDERS. Promptly upon request by the
Company, the Depositary shall, at the expense of the Company, furnish to it a
list, as of a recent date, of the names, addresses and holdings of American
Depositary Shares by all persons in whose names Receipts are registered on the
books of the Depositary.
SECTION 4.12. WITHHOLDING. The Company shall remit to the
appropriate governmental authority or agency any amounts required to be withheld
by the Company and owing to such governmental authority or agency. In the event
that the Depositary determines that any distribution in property (including
Shares and rights to subscribe therefor) is subject to any tax or other
governmental charge which the Depositary is obligated to withhold, the
Depositary shall withhold the amount required to be withheld and may by public
or private sale dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Holders entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
SECTION 4.13. TAXATION. The Depositary will, and will instruct
the Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary reports with governmental authorities or agencies,
and the Depositary, the Custodian or the Company and its agents may (but shall
not be obligated to) file such reports as are necessary to reduce or eliminate
applicable taxes on distributions in respect of Deposited Securities on
dividends and other benefits under applicable tax treaties for the Holders and
Beneficial Owners. Holders and Beneficial Owners of American Depositary Shares
may be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and of beneficial ownership (where applicable), to
execute such certificates and to make such representations and warranties, or to
provide any other information or documents as the Depositary may deem necessary
or proper to fulfill the Depositary's obligations under applicable law. The
Holders and Beneficial Owners shall indemnify the Depositary, the Company, the
Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
The Depositary is under no obligation to provide the Holders
and Beneficial Owners with any information about the tax status of the Company.
The Depositary shall not incur any liability for any tax consequences that may
be incurred by Holders and Beneficial Owners on account of their ownership of
the American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment
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Company" (in each case as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE
DEPOSITARY. Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust
Office, for the registration of Receipts and transfers of Receipts which at all
reasonable times shall be open for inspection by the Holders, 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.
The Depositary may close the transfer books, at any time or
from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder.
If any Receipts or the American Depositary Shares evidenced
thereby are listed on one or more stock exchanges or automated quotation systems
in the United States, the Depositary shall act as Registrar or, upon written
notice to the Company, appoint a Registrar or one or more co-Registrars for
registry of such Receipts in accordance with any requirements of such stock
exchange or exchanges or automated quotation system or systems.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY. Neither the Depositary nor the Company nor any of
their respective directors, employees, agents or Affiliates shall incur any
liability to any Holder or Beneficial Owner of any Receipt, if by reason of any
provision of any present or future law or regulation of the United States or any
state thereof, the Republic of Ecuador, including, without limitation, any
provision of the Commercial Code or of the Civil Code, or any other country, or
of any governmental or regulatory authority, stock exchange or automated
quotation system, or by reason of any provision, present or future, of the
Bylaws of the Company, or by reason of any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of this Deposit Agreement or Deposited
Securities it is provided shall be done or performed; nor shall the Depositary
or the Company or any of their respective directors, employees, agents or
Affiliates incur any liability to any Holder or Beneficial Owner of any Receipt
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which 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
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Agreement. Neither the Depositary nor the Company shall incur any liability in
the case that any or all holders of Deposited Securities benefit from any
distribution, offering, right or other benefit which is not, under the terms of
this Deposit Agreement, made available to any or all Holder(s) or Beneficial
Owners of American Depositary Shares issued hereunder. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02, or 4.03 of this Deposit Agreement,
or an offering or distribution pursuant to Section 4.04 of this Deposit
Agreement, or an event described in Section 4.08 of this Deposit Agreement, for
any other reason, a distribution or offering may not be made available to
Holders, and the Depositary may not dispose of such distribution or offering on
behalf of such Holders and make the net proceeds available to such Holders, then
the Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY AND THE COMPANY.
The Company assumes no obligation nor shall it be subject to any liability under
this Deposit Agreement to Holders or Beneficial Owners, except that it agrees to
perform its obligations specifically set forth in this Deposit Agreement without
negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject
to any liability under this Deposit Agreement or the Receipts to any Holder or
Beneficial Owner or other persons (including, without limitation, liability with
respect to the validity or worth of the Deposited Securities), except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of any Deposited Securities or
in respect of the Receipts, which in its opinion may involve it in expense or
liability, unless an indemnity satisfactory to it against all expense and
liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Holder
or Beneficial Owner or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary, the Custodian and
the Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed to be genuine and to have been
signed or presented by the proper party or parties.
The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without negligence or bad faith while it acted as Depositary.
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The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is without negligence and in good faith and in
accordance with the terms of the Deposit Agreement.
The Custodian and the Depositary (and any of their Affiliates)
may own and deal in any class of securities of the Company (and any of its
Affiliates) and in Receipts.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY. The
Depositary may at any time resign as Depositary hereunder by at least thirty
days' advance written notice of its election so to do delivered to the Company,
such resignation to take effect upon the earlier of (i) the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided, or (ii) upon expiration of a 90 day period (commencing on the date
that the resigning Depositary notifies the Company of its intent to resign)
during which period a successor depositary is not appointed as contemplated in
(i) of this Section (whereupon the Depositary shall be entitled to take actions
as contemplated in Section 6.02).
The Depositary may at any time be removed by the Company by at
least thirty days' advance written notice of such removal, effective upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
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 such documents and instruments
as may be reasonably requested by the Company in order to transfer to such
successor all rights and powers of such predecessor hereunder (except as
contemplated by Sections 5.08 and 5.09), shall 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 of all outstanding
Receipts. 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. CUSTODIANS. The Depositary may from time to time
appoint one or more entities as Custodian. The Custodian 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
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resign and be discharged 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. If upon such resignation there shall be no
Custodian acting hereunder, the Depositary shall, promptly after receiving such
notice, appoint a substitute custodian or custodians. Whenever the Depositary in
its discretion determines that it is in the best interest of the Holders to do
so, it may appoint a substitute or additional custodian or custodians, each of
which shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary, any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it, and any rewards pertaining thereto, to any other
Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder,
each 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
each 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 such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06. NOTICES AND REPORTS. On or before the first date
on which the Company gives notice, by publication or otherwise, of any meeting
of holders of Shares or other Deposited Securities, or of any adjourned meeting
of such holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of Deposited Securities,
the Company agrees to transmit to the Custodian and to the Depositary a copy of
the notice thereof (in the English language) in the form given or to be given to
holders of Shares or other Deposited Securities.
The Company will also promptly transmit to the Depositary (i)
summaries in English or English-language versions of any reports, notices and
other communications that are generally transmitted by the Company to holders of
its Shares or other Deposited Securities, (ii) English-language versions of the
Company's annual and semi-annual reports in each case prepared in accordance
with the applicable requirements of the Commission.
If requested in writing by the Company, the Depositary will
arrange for the timely mailing, at the Company's expense, of copies of such
notices, reports and communications to all Holders. The Company will timely
provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings.
SECTION 5.07. ISSUANCE OF ADDITIONAL SHARES, ADSs, ETC. The
Company agrees that in the event it or any of its Affiliates proposes (i) an
issuance, sale or distribution of additional Shares, (ii) an offering of rights
to subscribe for Shares or other Deposited Securities, (iii) an issuance of
securities convertible into or exchangeable for Shares, (iv) an issuance of
rights to subscribe for securities convertible into or exchangeable for Shares,
(v) an elective
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dividend of cash or Shares, (vi) a redemption of Deposited Securities, (vii) a
meeting of holders of Deposited Securities, or solicitation of consents or
proxies, relating to any reclassification of securities, merger or consolidation
or transfer of assets or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to Holders
and Beneficial Owners does not violate the registration provisions of the
Securities Act, or any other applicable laws (including, without limitation, the
Exchange Act or the securities laws of the states of the United States). In
support of the foregoing, the Company will furnish to the Depositary (a) a
written opinion of U.S. counsel (reasonably satisfactory to the Depositary)
stating whether or not application of such transaction to Holders and Beneficial
Owners (1) requires a registration statement under the Securities Act (and the
securities laws of the states of the United States) to be in effect or (2) is
exempt from the registration requirements of the Securities Act (and the
securities laws of the states of the United States) and (b) an opinion of
Ecuadorian counsel stating that (1) making the transaction available to Holders
and Beneficial Owners does not violate the laws of Ecuador and (2) all requisite
regulatory consents and approvals have been obtained in Ecuador. If the filing
of a registration statement is required, the Depositary shall not have any
obligation to proceed with the transaction unless it shall have received
evidence reasonably satisfactory to it that such registration statement has been
declared effective. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in this Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act (and the
securities laws of the states of the United States).
The Company agrees with the Depositary that neither the
Company nor any of its Affiliates will at any time deposit Shares hereunder
unless (i) the deposit and sale of such Shares (and the ADSs to be issued upon
such deposit) have been registered under the Securities Act or (ii) an exemption
from the registration requirements of the Securities Act is available.
SECTION 5.08. INDEMNIFICATION; REIMBURSEMENT. The Company
agrees to indemnify the Depositary, its directors, employees, agents and
Affiliates and any Custodian against, and hold each of them harmless from, any
loss, liability or expense (including, but not limited to, the reasonable fees
and expenses of counsel) which may arise out of (a) any acts performed or
omitted, in accordance with the provisions of this Deposit Agreement and of the
Receipts, as the same may be amended, modified or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and Affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, or (ii) by the Company or
any of its directors, employees, agents and Affiliates or (b) any offer or sale
of Receipts, ADSs or Shares or any registration statement under the Securities
Act in respect thereof, except to the extent such loss, liability or expense
arises out of information (or omission from information) provided to the
Commission by the Depositary or Custodian expressly for use in a registration
statement under the Securities Act.
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The Depositary agrees to indemnify the Company, its directors,
employees, agents and Affiliates against, and hold them harmless from, any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or the Custodian, or by the employees, directors and Affiliates of
either of them, due to their negligence or bad faith.
The obligations set forth in this Section shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person (as hereinafter defined).
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 5.08) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim that may give rise to an indemnity hereunder,
which defense shall be reasonable in the circumstances. No indemnified person
shall compromise or settle any action or claim that may give rise to an
indemnity hereunder without the consent of the indemnifying person, which
consent shall not be unreasonably withheld.
SECTION 5.09. CHARGES OF DEPOSITARY. The Company agrees to pay
or reimburse the fees, reasonable expenses and out-of-pocket charges of the
Depositary and those of any Registrar only in accordance with agreements in
writing entered into between the Depositary and the Company from time to time.
The Depositary shall present its statement for such charges and expenses to the
Company once every three months. The charges and expenses of the Custodian are
for the sole account of the Depositary. The right of the Depositary to receive
payment and/or reimbursements under this Section 5.09 shall survive the
termination of this Deposit Agreement.
The following charges shall be incurred by the Holders and
Beneficial Owners, by any party depositing or withdrawing Shares or by any party
surrendering Receipts or to whom Receipts 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 Receipts or Deposited Securities
or a distribution of Receipts pursuant to Section 4.03), whichever is
applicable: (1) taxes (including, without limitation, any amounts in respect of
any applicable stamp tax and other governmental charges), (2) such transfer or
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of the Depositary or
its nominee or the Custodian or its nominee on the making of deposits or
withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses
as are expressly provided in this Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to Sections
2.04, 4.04 and 4.08 and the surrender of Receipts pursuant to Section 2.06 or
6.02 (except in the case of the
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execution an delivery of Receipts upon the issuance of stock dividend for which
no such fee shall be payable), (6) a fee of $.02 or less per American Depositary
Share (or portion thereof) for any cash distribution made pursuant to the
Deposit Agreement (other than as a cash dividend), (7) a fee of $1.50 per
Receipt or Receipts for transfers made pursuant to Section 2.05 and (8) a fee
for the distribution of securities pursuant to Section 4.02, 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 of this clause (8) treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Holders.
The Depositary and its Affiliates, subject to Section 2.09
hereof, may own and deal in any class of securities of the Company and its
Affiliates and in Receipts.
SECTION 5.10. RETENTION OF DEPOSITARY DOCUMENTS. The
Depositary is authorized to destroy those documents, records, bills and other
data compiled during the term of this Deposit Agreement at the times permitted
by the laws or regulations governing the Depositary unless the Company requests
that such papers be retained for a longer period or turned over to the Company
or to a successor depositary.
SECTION 5.11. EXCLUSIVITY. The Company agrees not to appoint
any other depositary for issuance of american depositary receipts so long as
Bankers Trust Company is acting as Depositary hereunder.
SECTION 5.12. LIST OF RESTRICTED SECURITIES HOLDERS. From time
to time, the Company shall provide to the Depositary a list setting forth, to
the actual knowledge of the Company, those persons or entities who beneficially
own Restricted Securities and the Company shall update that list on a regular
basis. The Depositary may rely on such a list or update but shall not be liable
for any action or omission made in reliance thereon. The Company agrees to
notify in writing each of the persons or entities so listed that such Restricted
Securities are ineligible for deposit hereunder, except in accordance with the
following sentence. No person or entity so listed shall deposit any Shares
hereunder unless such person or entity delivers an opinion on which the
Depositary may rely, satisfactory to the Depositary, from recognized U.S.
counsel for the Company and related certificates, in such form as may be agreed
between the Company and the Depositary, that upon deposit of such Shares, such
Shares and the Receipts issued in respect thereof will not be "restricted
securities" within the meaning of Rule 144 (a)(3) under the Securities Act and
shall be tradable without restriction.
SECTION 5.13. THE TRUST AGREEMENT. Each Holder and Beneficial
Owner by acceptance of a Receipt issued in accordance with the terms hereof, or
any beneficial interest therein (i) acknowledges that the Depositary has legal
title to Deposited Securities represented by such Receipts and (ii) authorizes
the Depositary to enter into, execute and extend a Trust Agreement at any time
and from time to time, if and when necessary, in order to comply with the
requirements of applicable laws. In the event that, under the terms of the Trust
Agreement, the Depositary and the Trustee hold joint legal title to any
Deposited Securities represented by Receipts, the Depositary shall have full
power and authority over any Deposited Securities so
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held, subject to the terms of this Deposit Agreement, and the Trustee shall
agree to act in accordance with the Depositary's directions and instructions
with respect to such Deposited Securities. Upon execution of a Trust Agreement,
notice thereof shall be given to Holders of Receipts.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of 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 which
they may deem necessary or desirable without the consent of Holders or
Beneficial Owners of Receipts. Any amendment which shall impose or increase any
fees or charges (other than taxes and other governmental charges, registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Holders, shall, however, not become effective as to outstanding Receipts until
the expiration of thirty days after notice of such amendment shall have been
given to the Holders of outstanding Receipts. The parties hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the American Depositary Shares to
be registered on Form F-6 under the Securities Act or (b) the American
Depositary Shares or Shares to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to materially prejudice any substantial
rights of Holders or Beneficial Owners. Every Holder and Beneficial Owner, at
the time any amendment so becomes effective, shall be deemed, by continuing to
hold such Receipt and the ADSs represented thereby, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Holder or Beneficial Owner 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. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require an
amendment or supplement of the Deposit Agreement and the Receipts to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
SECTION 6.02. TERMINATION. The Depositary shall, at any time
at the direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate this Deposit Agreement by mailing notice of
such termination to the Company and the Holders of all Receipts then
outstanding, if at any time 90 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary
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shall not have been appointed and accepted its appointment as provided in
Section 5.04. On and after the date of termination, the Holder of a Receipt
will, upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.06, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
one year from the date of termination, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Holders of Receipts which have not theretofore been surrendered,
such Holders thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7
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 Custodians and shall be open to inspection by any Holder or Beneficial
Owner of a Receipt during business hours.
SECTION 7.02. NO THIRD PARTY BENEFICIARIES. This Deposit
Agreement is for the exclusive benefit of the parties hereto (and their
successors) and shall not be deemed to give any legal or equitable right, remedy
or claim whatsoever to any other person (except as specifically set forth
herein).
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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 AND BENEFICIAL OWNERS AS PARTIES;
BINDING EFFECT. The Holders and Beneficial Owners of Receipts evidencing ADSs
from time to time shall be parties to this Deposit Agreement and shall be deemed
to have knowledge of and be bound by all of the terms and conditions hereof and
of the Receipts evidencing ADSs by acceptance thereof.
SECTION 7.05. NOTICES. Any and all notices to be given to the
Company shall be deemed to have been duly given if in English and personally
delivered or sent by mail or cable, telex or facsimile transmission confirmed by
letter, addressed to Amazonas, 6017 y Rio Coca, Quito, Ecuador, Attention: Xxxxx
Xxxx Xxxx, Vice President-Finance (Fax: 0000-000-000), or to such place as the
Company may have transferred its principal office.
Any and all notices to be given to any Holders shall be deemed
to have been duly given if in English and personally delivered or sent by mail
or cable, telex or facsimile transmission confirmed by letter, addressed to
Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR
Department (telephone: (000) 000-0000); facsimile number: (000) 000-0000, or any
other place to which the Depositary may have transferred its Corporate Trust
Office.
Any and all notices to be given to any Holder shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission 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. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter 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. Except as set forth in the following paragraph of this Section 7.06, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers
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CT Corporation (the "Agent") now at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as
its authorized agent to receive and accept for and on its behalf, and on behalf
of its properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit, action
or proceeding brought against the Company in any federal or state court as
described in this Section 7.06. If for any reason the Agent shall cease to be
available to act as such, the Company agrees to designate a new agent in New
York on the terms and for the purposes of this Section 7.06 reasonably
satisfactory to the Depositary. The Company further hereby irrevocably consents
and agrees to the service of any and all legal process, summons, notices and
documents in any suit, action or proceeding against the Company, by service by
mail of a copy thereof upon the Agent (whether or not the appointment of such
Agent shall for any reason prove to be ineffective or such Agent shall fail to
accept or acknowledge such service), with a copy mailed to the Company by
registered or certified air mail, postage prepaid, to its address provided in
Section 7.05 hereof. The Company agrees that the failure of the Agent to give
any notice of such service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any action or proceeding
based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of venue of any actions, suits or proceedings brought in any court
as provided in this Section 7.6, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement.
The provisions of this Section 7.06 shall survive any
termination of this Deposit Agreement, in whole or in part.
SECTION 7.07. ASSIGNMENT. Subject to the provisions of Section
5.04 hereof, this Deposit Agreement may not be assigned by either the Company or
the Depositary.
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SECTION 7.08. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in this Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
SECTION 7.09. TITLES. All references in this Deposit Agreement
to exhibits, articles, sections, subsections, and other subdivisions refer to
the exhibits, articles, sections, subsections and other subdivisions of this
Deposit Agreement unless expressly provided otherwise. The words "this Deposit
Agreement", "herein", "hereof", "hereby", "hereunder", and words of similar
import refer to the Deposit Agreement as a whole as in effect between the
Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to
any particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
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IN WITNESS WHEREOF, CONSORCIO ECUATORIANO DE
TELECOMUNICACIONES S.A. CONECEL and BANKERS TRUST COMPANY have duly executed
this Deposit Agreement as of the day and year first set forth above and all
Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs evidenced by Receipts issued in accordance with the terms hereof.
CONSORCIO ECUATORIANO DE
TELECOMUNICACIONES S.A. CONECEL
By:
--------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
as Depositary
By:
--------------------------------------
Name:
Title:
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EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents one deposited Share)
BANKERS TRUST COMPANY
AMERICAN DEPOSITARY RECEIPT
REPRESENTING CLASS B COMMON STOCK,
PAR VALUE 1,000 SUCRES PER SHARE, OF
CONSORCIO ECUATORIANO DE TELECOMUNICACIONES S.A. CONECEL
(INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF ECUADOR)
Bankers Trust Company as depositary (hereinafter called the "Depositary"),
hereby certifies that ___________________, or registered assigns IS THE HOLDER
OF _______________________
AMERICAN DEPOSITARY SHARES
representing Class B Common Stock, par value 1,000 Sucres per share (herein
called "Share(s)") of Consorcio Ecuatoriano de Telecomunicaciones S.A. CONECEL,
a corporation (SOCIEDAD ANONIMA) incorporated under the laws of the Republic of
Ecuador (herein called the "Company"). At the date hereof, each American
Depositary Share represents one Share deposited or subject to deposit under the
Deposit Agreement.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS LOCATED AT
0 XXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein
called "Receipts"), all issued and to be issued upon the terms and conditions
set forth in the Deposit Agreement, dated as of ________ _, 1998 (such Deposit
Agreement as amended from time to time, the "Deposit Agreement"), by and among
the Company, the Depositary, and all Holders and Beneficial Owners from time to
time of Receipts representing American Depositary Share(s) (herein called
"ADS(s)") issued thereunder, each of whom by accepting a Receipt agrees to
become a party thereto and become bound by all the terms and conditions thereof.
The Deposit Agreement sets forth the rights of Holders and Beneficial Owners of
the Receipts and the rights and duties of the Depositary in respect of the
Shares deposited thereunder and any and all other securities, property and cash
from time to time received in respect of such Shares and held thereunder (such
Shares, securities, property, and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Depositary's
Corporate Trust Office in New York City and at the office of the Custodian as
hereinafter defined.
The statements made on the face and reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and are qualified
by and subject to the detailed
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provisions of the Deposit Agreement, to which reference is hereby made.
Capitalized terms defined in the Deposit Agreement and not defined herein shall
have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary
of this Receipt, and upon payment of the fee of the Depositary provided in this
Receipt and payment of all taxes and payable in connection with such surrender
and withdrawal of the Deposited Securities, and subject to the terms and
conditions of the Deposit Agreement and the Company's Bylaws, and upon payment
of related fees and charges of the Depositary as described in Paragraph 7, the
Holder hereof is entitled to delivery, to him or upon his order, at the
principal office of the Custodian of the amount of Deposited Securities at the
time represented by the American Depositary Shares evidenced by this Receipt.
Delivery of such Deposited Securities may be made by (a)(i) the delivery of
certificates in the name of such Holder or as ordered by him or certificates
properly endorsed or accompanied by proper instruments of transfer to such
Holder or as ordered by him or (ii) book-entry transfer (if available) of Shares
represented by the American Depositary Shares evidenced by such Receipt to an
account in the name of such Holder or as ordered by him, and (b) delivery of any
other securities, property and cash to which such Holder is then entitled in
respect of such Receipts to such Holder or as ordered by him. Such delivery
shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by properly executed
instruments of transfer in blank, and if the Depositary so requires, the Holder
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be delivered
to or upon the written order of a person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the principal
office of such Custodian, subject to the terms of the Deposit Agreement, to or
upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, except that the Depositary may make delivery to such person or persons
at the Corporate Trust Office of the Depositary of any dividends or other cash
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
The Depositary shall not accept for surrender a Receipt
evidencing American Depositary Shares representing less than one Share. In the
case of surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be delivered in
accordance with the terms hereof, and shall issue and deliver to the person
surrendering such Receipt a new Receipt evidencing American Depositary Shares
representing any remaining fractional Share.
X-0
00
Xx the request, risk and expense of any Holder so surrendering
a Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
No surrender of Receipts for the purpose of withdrawal of
Deposited Securities shall be accepted unless accompanied by evidence
satisfactory to the Depositary that all necessary filings have been made and
approvals have been obtained (or in each case, have been properly waived) under
the laws of the Republic of Ecuador.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
Subject to the terms and conditions of the Deposit Agreement,
the transfer of this Receipt is registerable on the books of the Depositary at
its Corporate Trust Office by the Holder hereof in person or by a duly
authorized attorney, upon surrender of this Receipt duly stamped (as may be
required by law), properly endorsed for transfer or accompanied by proper
instruments of transfer and funds sufficient to pay any applicable taxes or
other governmental charges, and duly stamped as may be required by applicable
law, and upon compliance with such regulations, if any, as the Depositary may
establish for such purpose. Upon satisfaction of the conditions described above,
the Depositary shall execute a new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto. This Receipt may, upon the
terms and conditions of the Deposit Agreement, 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 the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presenter
of the Receipt a sum sufficient to reimburse it for any tax (including, without
limitation, amounts in respect of any applicable transfer taxes) or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require proof of
compliance with any applicable notice, consent or other requirements relating to
the acquisition of securities of Ecuadorian companies and may also require
compliance with any regulations the Depositary may establish consistent with the
provisions of the Deposit Agreement or this Receipt, including, without
limitation, this Paragraph 3.
The delivery of Receipts against deposit of Shares generally
or against deposit of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts or the combination or split-ups of Receipts generally
may be suspended, during any period when the transfer books of the Depositary
are closed, or if any such action is deemed necessary or advisable by the
Depositary
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or the Company in their reasonable discretion at any time or from time to time
because of any requirement of law or of any government or quasi-governmental
body or commission or any securities exchange or automated quotation system on
which the American Depositary Shares may be listed, or under any provision of
the Deposit Agreement or this Receipt, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding anything to the contrary
in the Deposit Agreement or this Receipt, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may be suspended, only as permitted in
General Instruction I.A. (1) to Form F-6 (as such instructions may be amended
from time to time) in connection with (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares required to be registered under the provisions of
the Securities Act of 1933, unless a registration statement is in effect as to
such Shares.
4. LIABILITY OF HOLDER OR BENEFICIAL OWNER FOR TAXES.
If any tax (including, without limitation, any transfer taxes)
or other governmental charge shall become payable with respect to this Receipt
or any Deposited Securities represented hereby, such tax or other governmental
charge shall be payable by the Holder or Beneficial Owner hereof to the
Depositary. The Depositary may refuse to effect any transfer (or any combination
or split-up) of this Receipt or, subject to Paragraph 23 hereof, any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder and Beneficial Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Holder or Beneficial Owner hereof shall remain
liable for any deficiency.
The Holder and Beneficial Owner (if any) hereof agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
5. REPRESENTATIONS AND WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are duly authorized, validly issued, fully paid,
non-assessable, legally obtained by such person and free of any preemptive
rights of the holders of outstanding Shares and that the person making such
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deposit is duly authorized so to do. Every such person shall also be deemed to
represent that such Shares and the Receipts evidencing American Depositary
Shares representing such Shares are (a) not Restricted Securities (as defined in
the Deposit Agreement) and (b) not subject to any unfulfilled requirements of
Ecuadorian law. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts. If any such representations or warranties are
false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing the Shares, and in their sole and
absolute discretion, to take any and all actions necessary to correct the
consequences thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Holder or
Beneficial Owner of a Receipt may be required from time to time (i) to file with
the Depositary or the Custodian such proof of citizenship or residence, exchange
control approval, payment of applicable taxes or other governmental charges,
legal or beneficial ownership of Receipts, Deposited Securities or other
securities, compliance with all applicable laws or regulations or terms of the
Deposit Agreement or the Receipts, or such information relating to the
registration on the books of the Company or the Foreign Registrar, if
applicable, or any other information the Custodian, the Depositary, the Company
or the Trustee may deem necessary or appropriate as evidence of compliance with
all applicable laws and regulations, and (ii) to execute such certificates and
to make such representations and warranties, as the Depositary may deem
necessary or appropriate. Any such person shall be required to comply with
requests by the Company for information as to the capacity in which such person
owns Receipts and Shares, the identity of any other person interested in any
such Receipt or Share, and the nature of such interest. The Depositary may
withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or distribution of rights or of the sale proceeds
thereof or, subject to the terms of Paragraph 23 hereof, the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made to the
Depositary's reasonable satisfaction.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay or reimburse the fees, reasonable
expenses and out-of-pocket charges of the Depositary and those of any Registrar
in accordance only with agreements in writing entered into between the
Depositary and the Company from time to time. The right of the Depositary to
receive payments reimbursements under this Paragraph 7 shall survive the
termination of the Deposit Agreement.
The following charges shall be incurred by the Holders and
Beneficial Owners, by any party depositing or withdrawing Shares or by any party
surrendering Receipts or to whom Receipts 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 Receipts or Deposited Securities
or a distribution of Receipts pursuant to Paragraph 12 hereof and to the terms
of the Deposit Agreement), whichever is applicable: (1) taxes (including,
without limitation, any amounts in respect of any applicable stamp tax and other
governmental charges), (2) such
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transfer or registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the register of the Company or
Foreign Registrar and applicable to transfers of Shares to the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Paragraph 14 hereof and to the terms of the Deposit
Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or
portion thereof) for the execution and delivery of Receipts pursuant to
Paragraph 14 hereof and to the terms of the Deposit Agreement and the surrender
of Receipts pursuant to Paragraphs 2 and 21 hereof and he terms of the Deposit
Agreement (except in the case of the execution an delivery of Receipts upon the
issuance of stock dividend for which no such fee shall be payable), (6) a fee of
$.02 or less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement (other than as a cash
dividend), and (7) a fee for the distribution of securities pursuant to
Paragraph 7 hereof and to the terms of 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 of this clause (8) treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Holders.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding anything to the contrary in this Receipt or in
the Deposit Agreement but subject to the terms and conditions thereof, the
Depositary may execute and deliver Receipts prior to the receipt of Shares (a
"Pre-Release"). The Depositary may deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom Receipts or Shares are to be delivered, that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Release
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
PROVIDED, HOWEVER, that the Depositary reserves the right to change or disregard
such limit from time to time as it reasonably deems appropriate, and may change
such limit for purposes of general application. The Depositary will also set
Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Releasee on a case-by-case basis as the
Depositary reasonably deems appropriate. For purposes of enabling the Depositary
to fulfill its obligations to the Holders under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
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44
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Holder
and Beneficial Owner of this Receipt by accepting or holding the same consents
and agrees, that title to this Receipt 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 under the laws of New York (subject to
satisfying the requirements of the Deposit Agreement); PROVIDED, HOWEVER, that
the Depositary, notwithstanding any notice to the contrary, may treat the Holder
hereof as the absolute Holder hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes. Neither the
Depositary nor the Company shall have obligation under the terms hereof or of
the Deposit Agreement to any Beneficial Owner or Holder of any Receipt issued
pursuant to the Deposit Agreement unless such person is registered as the Holder
thereof.
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 this Receipt
shall have been executed by the Depositary by the manual or facsimile signature
of a duly authorized signatory of the Depositary; PROVIDED, HOWEVER, that if a
Registrar for the Receipts shall have been appointed this Receipt shall be
countersigned by the manual signature of a duly authorized officer of the
Registrar. Such signature of this Receipt by manual signature shall be
conclusive evidence, and the only evidence, that this Receipt has been duly
executed and delivered under the terms hereof, and of the Deposit Agreement.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the reporting requirements of the
Securities Exchange Act of 1934 applicable to foreign private issuers and, in
accordance therewith, files reports and other information with the Commission.
Such reports may be inspected by Holders and Beneficial Owners at the public
reference facilities maintained by the Commission located at Judiciary Plaza 450
Fifth Street, N.W. (Room 1024), Xxxxxxxxxx, X.X. 00000.
The Depositary shall make available for inspection by Holders
of Receipts at its Corporate Trust Office any reports and communications,
including any proxy solicitation material, received from the Company which are
both (a) received by the Depositary, the Custodian or the Trustee (or their
respective nominees) as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also send to Holders of Receipts copies of such reports or
communications when furnished by the Company pursuant to the Deposit Agreement.
The Depositary will keep books, at its Corporate Trust Office,
for the registration of Receipts and transfers of Receipts which at all
reasonable times shall be open for inspection
A-7
45
by the Holders of Receipts provided that such inspection shall not be for the
purpose of communicating with Holders of Receipts in the interest of a business
or object other than the business of the Company or other than a matter related
to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Depositary shall
establish an ADS Record Date pursuant to Paragraph 15 hereof and shall, subject
to this Paragraph 12, convert such dividend or distribution into Dollars (if not
paid in Dollars), as promptly as practicable, and shall distribute the amount
thus received (net of the fees and expenses of the Depositary as provided in
Paragraph 7 hereof and any taxes or other governmental charges paid in
conjunction with such conversion), as promptly as practicable, to the Holders as
of the ADS Record Date (as herein defined), in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them,
respectively; PROVIDED, HOWEVER, that in the event that the Company or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Holder of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto, and any balance not so distributable shall be retained by the
Depositary (without liability for interest thereon) for inclusion with funds
received by the Depositary thereafter in respect of the Deposited Securities for
distribution to Holders of Receipts then outstanding. The Depositary or the
Company or their respective agents may (but shall not be obligated to) file any
reports necessary to obtain benefits under the applicable tax treaties for the
Holders of Receipts.
Subject to the terms of the Deposit Agreement, whenever the
Depositary shall receive any distribution other than a distribution in cash,
Shares or Rights under the terms of the Deposit Agreement the Depositary shall
establish an ADS Record Date pursuant to the terms of Paragraph 15 hereof, and
shall cause the securities or property received by it to be distributed as
promptly as practicable to the Holders as of the ADS Record Date, after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; PROVIDED, HOWEVER, 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, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Holders) the Depositary deems such distribution not to be practicable, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the proceeds of any such sale (net of the fees and expenses of the
Depositary as provided in Paragraph 7 hereof and any taxes or other governmental
charges
A-8
46
paid in conjunction with such sale or distribution) shall be distributed by the
Depositary to the Holders entitled thereto, all in the manner described above in
this Paragraph 12.
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary shall establish
an ADS Record Date pursuant to the terms of Paragraph 15 hereof, and may, and
will if the Company so requests, distribute as promptly as practicable to the
Holders of outstanding Receipts as of the ADS Record Date, in proportion to the
number of American Depositary Shares held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement and
of this Receipt with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in this Paragraph 12 and the
payment of the fees and expenses of the Depositary as provided in Paragraph 7
hereof. The Depositary may withhold any such distribution of Receipts if it has
not received satisfactory assurances from the Company that such distribution
does not require registration under the Securities Act or is exempt from
registration under the provisions of the Securities Act. In lieu of delivering
Receipts for fractional American Depositary Shares the Depositary may, in its
discretion, sell the amount of Shares represented by the aggregate of such
fractions, at public or private sale, at such place or places and upon such
terms as it may deem proper, and distribute the net proceeds of any such sale as
if such proceeds were a cash distribution. If additional Receipts are not so
distributed (except as pursuant to the preceding sentence), each American
Depositary Share shall thenceforth also represent its proportionate interest in
the additional Shares so distributed upon such Deposited Securities.
13. RIGHTS.
In the event that 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 other nature, the Depositary shall, upon
receipt of timely notice thereof and after consultation with the Company, have
discretion as to the procedure to be followed in making such rights available to
any Holders or in disposing of such rights on behalf of any Holders and making
the net proceeds available to such Holders or, if by the terms of such rights
offering or for any other reason, the Depositary may not either make such rights
available to any Holders or dispose of such rights and make the net proceeds
available to such Holders, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines in its
reasonable discretion that it is lawful and practicable to make such rights
available to all or certain Holders but not to other Holders, the Depositary may
distribute to any Holder to whom it determines the distribution to be lawful and
practicable, in proportion to the number of American Depositary Shares held by
such Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be
distributed, if a Holder of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the Shares
evidenced by the American Depositary Shares held by such Holder
A-9
47
hereunder, the Depositary will make such rights available to such Holder upon
written notice from the Company to the Depositary that the Company has elected
in its sole discretion to permit such rights to be exercised.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Holders, then upon instruction from any
such Holder pursuant to such warrants or other instruments to the Depositary to
exercise such rights, upon payment by such Holder to the Depositary for the
account of such Holder of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Holder. As agent
for such Holder, the Depositary will cause the Shares so purchased to be
deposited pursuant to the terms of the Deposit Agreement, and shall, pursuant to
the Deposit Agreement, execute and deliver Receipts to such Holder.
If the Depositary determines in its reasonable discretion that
it is not lawful and feasible to make such rights available to all or certain
Holders, it may sell the rights, warrants or other instruments in proportion to
the number of American Depositary Shares held by the Holders to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Paragraph 7 hereof and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Holders otherwise
entitled to such rights, warrants or other instruments, 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
otherwise. Any such proceeds shall be distributed in accordance with as would a
cash distribution under Paragraph 12 hereof.
The Depositary will not distribute rights to Holders unless
both the rights and the securities to which such rights relate are either exempt
from registration under the Securities Act of 1933 with respect to a
distribution to all Holders or are registered under the provisions of such Act;
PROVIDED, that nothing in this Receipt or in the Deposit Agreement shall create,
or be construed to create, any obligation on the part of the Company or the
Depositary to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If a Holder of Receipts requests the distribution of
warrants or other instruments, notwithstanding that there has been no such
registration under such Act, the Depositary shall not effect such distribution
unless it has received an opinion acceptable to it from recognized counsel in
the United States for the Company upon which the Depositary may rely that such
distribution to such Holder is exempt from such registration.
Subject to Paragraph 18 hereof, the Depositary shall not be
responsible for any good faith failure to determine that it may be lawful or
feasible to make such rights available to Holders in general or any Holder in
particular.
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There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to exercise rights on the
same terms and conditions as the holders of Shares or to exercise such rights.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a practicable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall, as promptly as
practicable, convert or cause to be converted, by sale or in any other manner
that it may determine, such foreign currency into Dollars and such Dollars (net
of any fees, expenses, taxes or other governmental charges incurred in the
process of such conversion) shall be distributed, as promptly as practicable, to
the Holders entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars,
then to the holders of such warrants and/or instruments 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, the date of delivery of any Receipt 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 as promptly as practicable such application for approval or license,
if any, as it may deem necessary. Nothing herein shall obligate the Depositary
to file or cause to be filed, or to seek effectiveness of any such application
or license.
If at any time the Depositary shall determine that in its
reasonable judgment any foreign currency received by the Depositary or the
Custodian is not convertible on a practicable basis into Dollars transferable to
the United States, or if any approval or license of any government or agency
thereof which is required for such conversion is denied or in the opinion of the
Depositary is not readily obtainable, or if any such approval or license is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may in its discretion, but subject to applicable laws and
regulations, either (i) distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to the Holders entitled to receive such foreign currency, or (ii)
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some of the Holders entitled
thereto, the Depositary may in its discretion, but subject to applicable laws
and regulations, either (i) make such conversion and distribution in Dollars to
the extent permissible to the Holders entitled thereto and (ii) distribute the
balance of the foreign currency received by the Depositary to, or hold such
balance uninvested and without liability for interest thereon for the respective
accounts of, the Holders entitled thereto.
X-00
00
00. RECORD DATES.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (the "ADS Record Date") as close as practicable to the
record date fixed by the Company with respect to the Shares (a) for the
determination of the Holders who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give instructions for the exercise of voting rights at any such meeting, or
(iii) to act in respect of any other matter or (b) on or after which each
American Depositary Share will represent the changed number of Shares. Subject
to Paragraph 12 hereof and to the provisions of the Deposit Agreement, the
Holders at close of business in New York on such ADS Record Date shall be
entitled, as the case may be, to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions and
to act in respect of any other such matter.
16. VOTING OF DEPOSITED SECURITIES.
Holders of Shares are not entitled to vote except with respect
to any proposed change to the terms and rights of the Shares (including, without
limitation, the right to receive dividends, liquidation rights and statutory
preemption rights). The Company agrees to timely advise the Depositary of any
such changes to the terms and rights of the Shares. Upon receipt of timely
notice of any meeting of holders of Shares or solicitation of consents or
proxies of holders of Shares or other Deposited Securities, the Depositary shall
establish an ADS Record Date pursuant to Paragraph 15 hereof and shall, as soon
as practicable thereafter and if requested in writing by the Company, mail to
the Holders of Receipts as of the ADS Record Date a notice in English, the form
of which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting (or
solicitation of consent or proxy) received by the Depositary from the Company,
(b) a statement that the Holders of Receipts as of the ADS Record Date will be
entitled, subject to any applicable provision of Ecuadorian law, terms of the
Deposit Agreement and of the Bylaws of the Company, to instruct the Depositary
as to the exercise of the voting rights (or rights to consent to or to grant a
proxy) pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such voting instructions may be given. Upon the
written instruction of a Holder of a Receipt as of such ADS Record Date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor, insofar as practicable, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt(s) in accordance with the
instructions set forth in such voting instructions.
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Neither the Depositary nor the Custodian shall, under any circumstances,
exercise any discretion as to voting, vote any Shares other than an integral
number thereof, or vote Shares in a manner that would be inconsistent with
applicable law. Notwithstanding anything to the contrary in this Deposit
Agreement, if the Depositary is notified by the Company that applicable law
prohibits the Depositary, the Custodian, or the nominee(s) of either of them (if
any), as the holder of the Deposited Securities, from voting less than all of
the Shares registered in its name in the same manner, (i) the Depositary shall
provide notice thereof to all Holders as of the ADS Record Date in the statement
identified in (b) above, and (ii) Holders of ADSs shall be deemed, and the
Depositary shall deem such Holders, to have instructed the Depositary to vote
all of the Deposited Securities in accordance with the voting instructions
received in respect of the majority of ADSs for which voting instructions have
been received from the Holders of ADSs. Voting instructions in respect of any
ADS shall be deemed to have been received only if received in accordance with
the terms of this Deposit Agreement. The Company agrees to provide timely notice
to the Depositary enabling the timely notification of Holders in the statement
identified in (b) above as to limitations on the ability of the Depositary to
vote Deposited Securities in accordance with instructions from Holders.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances other than a distribution in Shares, upon any
change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation, or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities shall, to the extent permitted by applicable laws, be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall (to the extent permitted by law) thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, but shall not without first receiving from counsel of Company an
opinion, which shall be satisfactory to the Depositary, that such delivery would
not violate any applicable law or regulation, execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or Affiliates shall incur any liability
to any Holder or Beneficial Owner of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States or any state
thereof, the Republic of Ecuador including, without limitation, any provision of
the Ecuadorian Civil Code or of the Ecuadorian Commercial Code, or any other
country, or of any governmental or regulatory authority, stock exchange or
automated quotation system, or by reason of any provision, present or future, of
the Bylaws of the Company, or by reason of any provision of any securities
issued or distributed by the Company, or any offering or distribution
A-13
51
thereof, or by reason of any act of God or war or other circumstances beyond its
control, the Depositary or the Company shall be prevented, delayed or forbidden
from, or be subject to any civil or criminal penalty on account of, doing or
performing any act or thing which by the terms of the Deposit Agreement or
Deposited Securities it is provided shall be done or performed; nor shall the
Depositary or the Company or any of their respective directors, employees,
agents or Affiliates incur any liability to any Holder or Beneficial Owner of
any Receipt by reason of any nonperformance or delay, caused as aforesaid, in
the performance of any act or thing which 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. Neither the Depositary nor the Company shall incur any liability in
the case that any or all holders of Deposited Securities benefit from any
distribution, offering, right or other benefit which is not, under the terms of
the Deposit Agreement, made available to any or all Holder(s) or Beneficial
Owners of American Depositary Shares issued hereunder. Where, by the terms of a
distribution pursuant to the terms of the Deposit Agreement, or an offering or
distribution pursuant to the terms of the Deposit Agreement, or for any other
reason, such distribution or offering may not be made available to Holders, and
the Depositary may not dispose of such distribution or offering on behalf of
such Holders and make the net proceeds available to such Holders, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Holder
or Beneficial Owner of a Receipt, or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary shall
not be responsible for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which any such vote is cast or
the effect of any such vote, provided that any such action or nonaction is in
good faith. The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises, the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary. The
Company agrees to indemnify the Depositary, its directors, employees, agents and
Affiliates and any Custodian against, and hold each of them harmless from, any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel, but excluding any form of tax, fee, or other governmental
charge upon any stock transfer or registration owed by any party other than the
Company which shall be reimbursed only as provided in the penultimate sentence
of this paragraph) which may arise out of any registration with the Commission
of Receipts, American Depositary Shares or Deposited Securities or the offer or
sale thereof in the United States or out of acts performed or omitted, in
accordance with the provisions of the Deposit Agreement and of the Receipts, as
the same may be amended, modified, or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and Affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of the m, or (ii) by the Company or any of its
directors, employees, agents and Affiliates.
X-00
00
00. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder
by at least thirty days' advance written notice of its election so to do
delivered to the Company, such resignation to take effect upon the earlier of
(i) the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided, or (ii) upon expiration of a 90 day period
(commencing on the date that the resigning Depositary notifies the Company of
its intent to resign) during which time period a successor depositary is not
appointed as contemplated in (i) of this Paragraph.
The Depositary may at any time be removed by the Company by at
least thirty days' advance written notice of such removal, effective upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
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, except as
contemplated in Paragraph 7 hereof and in the Deposit Agreement, shall 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 of all outstanding Receipts. 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.
The Depositary may from time to time appoint one or more
entities as Custodian. The Custodian 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 and be discharged 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. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians. Whenever the Depositary in its discretion determines that it is in
the best interest of the Holders to do so, it may appoint a substitute or
additional custodian or custodians, each of which shall thereafter be one of the
Custodians hereunder. Upon demand of the Depositary, any Custodian shall deliver
such of the Deposited Securities held by it as are requested of it, and any
rewards pertaining thereto, to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to
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the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary.
20. AMENDMENT.
This Receipt and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holder or Beneficial Owner hereof. Any amendment
which shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of the Holder hereof shall, however,
not become effective as to this Receipt until the expiration of thirty days
after notice of such amendment shall have been given to the Holder hereof. The
Holder and Beneficial Owner hereof agree that any amendments or supplements
which (i) are reasonably necessary (as agreed by the Company and the Depositary)
in order for (a) the American Depositary Shares to be registered on Form F-6
under the Securities Act or (b) the American Depositary Shares or Shares to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold this Receipt and the ADSs
represented thereby, to consent and agree to such amendment and to be bound by
this Receipt and by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder or Beneficial Owner of this Receipt
to surrender this Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require the amendment or
supplement of this Receipt or of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement this Receipt
and Deposit Agreement at any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement hereof or of Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, rules or regulations.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall, at any time at the direction of the
Company, terminate the Deposit Agreement by mailing notice of such termination
to the Holders of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate the Deposit Agreement by mailing notice of such termination to the
Company and the Holders of all Receipts then outstanding, if at any time 90 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in Paragraph 19. On
and after the date of termination, the Holder of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary,
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(b) payment of the fee of the Depositary for the surrender of Receipts referred
to in Paragraph 2, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the terms of the Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights and other property as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Holders of Receipts which have not
theretofore been surrendered, such Holders thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Holder of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). Upon the termination of the Deposit Agreement, the Company shall be
discharged from all obligations under the Deposit Agreement except for certain
obligations to the Depositary described therein.
22. DISCLOSURE OF INTERESTS; OWNERSHIP RESTRICTIONS.
Notwithstanding any other provision of the Deposit Agreement
or of this Receipt, the Bylaws of the Company or applicable Ecuadorian law, each
Holder and Beneficial Owner agrees to (a) provide such information as the
Company may request pursuant to Ecuadorian law (including, without limitation,
the Civil Code, the Commercial Code and the Ecuadorian Ley de Companias
(Companies' Law), any applicable law of the United States, the Company's Bylaws,
any resolutions of the Company's Board of Directors adopted pursuant to such
Bylaws, the requirements of any markets or exchanges upon which the ADSs or
Receipts are listed or traded, or to any requirements of any electronic
book-entry system by which the ADSs or Receipts may be transferred, and (b) be
bound by and subject to applicable provisions of the Ecuadorian laws, the Bylaws
of the Company and the requirements of any markets or exchanges upon which the
ADSs, Receipts or Shares are listed or traded, or pursuant to any requirements
of any electronic book-entry system by which the ADSs, Receipts or Shares may be
transferred, to the same extent as if such Holder and Beneficial Owner held
Shares directly.
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Failure by a Holder or Beneficial Owner to provide in a timely
fashion the information requested by the Company may, in the Company's sole
discretion, result in the withholding of certain rights in respect of such
Holder or Beneficial Owner's American Depositary Shares (including voting rights
and certain rights as to dividends in respect of the Shares represented by such
American Depositary Shares). The Depositary agrees to comply with any
instructions received from the Company requesting that the Depositary take the
actions specified therein to obtain such information.
In the event that the Company determines that there has been a
failure to comply with the applicable requirements with respect to any Deposited
Securities and that sanctions are to be imposed against such Deposited
Securities pursuant Ecuadorian law by a court of competent jurisdiction or the
Company's Bylaws by the Company, the Company shall so notify the Depositary,
giving details thereof, and shall instruct the Depositary in writing as to the
application of such sanctions to the Deposited Securities. The Depositary shall
have no liability for any action taken in accordance with such instructions.
23. COMPLIANCE WITH U.S. LAWS.
Notwithstanding anything in the Deposit Agreement or this
Receipt to the contrary, the withdrawal or delivery of Deposited Securities will
not be suspended by the Company or the Depositary except as would be permitted
by Instruction I.A. (1) of the General Instructions to Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
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