AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of September 3, 2007 (the “Amendment”) to the Deposit Agreement dated as of
April 2, 2007 (the “Deposit Agreement”), among eTelecare Global Solutions, Inc,,
a company incorporated and existing under the laws of the Republic of the
Philippines as a domestic stock corporation, and its successors (the “Company”),
Deutsche Bank Trust Company Americas, as depositary (the “Depositary”), and all
Holders and Beneficial Owners from time to time of American Depositary Receipts
(“ADRs”) issued thereunder.
W I T N E S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
As a result of a corporate action being effected by the Company, pursuant to
Section 6.1 of the Deposit Agreement, the Company and the Depositary desire
to
amend the ratio of Deposited Securities represented by each American Depositary
Share.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
1
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01. All
references in the Deposit Agreement to the term “Deposit Agreement” shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement as
amended hereby.
SECTION
2.02. The
ratio
of shares per American Depositary Share set forth in Section 1 of the Deposit
Agreement is amended so that after the Effective Date, each American Depositary
Share represents one Share.
ARTICLE
III
AMENDMENTS
TO THE FORM OF ADR
SECTION
3.01. All
references in the form of American Depositary Receipt to the
number of Shares represented by each American Depositary Share is amended to
reflect that each American Depositary Share represents one Share.
SECTION
3.02. The
form
of American Depositary Receipt, reflecting the amendments set forth in Article
III hereof, is amended and restated to read as set forth as Exhibit A hereto.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
2
(a)
This
Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in the Republic of the Philippines , nor does any stamp or similar
tax
or governmental charge need to be paid in the Republic of the Philippines on
or
in respect of such agreements.
ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
the close of business New York time on September, 2007 (the “Effective
Date”).
SECTION
5.02. Outstanding
Receipts.
Receipts issued prior or subsequent to the date hereof, which do not reflect
the
changes to the form of Receipt effected hereby, do not need to be called in
for
exchange and may remain outstanding until such time as the Owners thereof choose
to surrender them for any reason under the Deposit Agreement. The Depositary
is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION
5.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 5.8 of the Deposit Agreement in connection with any and
all liability it or they may incur as a result of the terms of this Amendment
and the transactions contemplated herein.
3
SECTION
5.04. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute one
instrument.
4
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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By:
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Name:
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Title:
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DEUTSCHE
BANK TRUST COMPANY AMERICAS,
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as
Depositary
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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5
Exhibit
A
to Amendment to Amended and Restated Deposit Agreement
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Number
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CUSIP:
29759R 000
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XXXX
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XX00000X0000
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American
Depositary Shares
(Each
American Depositary Share representing one
Fully
Paid Ordinary Share)
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
of
(Incorporated
under the laws of the Republic of the Philippines)
DEUTSCHE
BANK TRUST COMPANY AMERICAS,
as
depositary (herein called the “Depositary”),
hereby certifies that _____________is the owner of ______________ American
Depositary Shares (hereinafter “ADS”),
representing deposited common shares, including evidence of rights to receive
such ordinary shares (the “Shares”)
of
eTelecare Global Solutions, Inc., a company incorporated under the laws of
the
Republic of the Philippines (the “Company”).
As of
the date of the Deposit Agreement (hereinafter referred to), each ADS represents
one Share deposited under the Deposit Agreement with the Custodian which at
the
date of execution of the Deposit Agreement is Deutsche Bank AG, Manila (the
“Custodian”).
The
ratio of Depositary Shares to shares of stock is subject to subsequent amendment
as provided in Article IV of the Deposit Agreement. The Depositary’s Principal
Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
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(1)
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The
Deposit Agreement
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This
American Depositary Receipt is one of an issue of American Depositary Receipts
(“Receipts”),
all
issued and to be issued upon the terms and conditions set forth in the Deposit
Agreement, dated as of ______________, 2007 (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 issued thereunder, each of whom by accepting
a
Receipt agrees to become a party thereto and becomes bound by all the terms
and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of 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, other securities, property and cash
are
herein called “Deposited
Securities”).
Copies of the Deposit Agreement are on file at the Principal Office of the
Depositary and the Custodian.
A-1
Each
owner and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound
by
the terms of the Deposit Agreement and applicable ADR(s), and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in the Deposit Agreement
and
the applicable ADR(s), to adopt any and all procedures necessary to comply
with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness
thereof.
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Incorporation
and Bylaws (as in effect on the date of the Deposit Agreement) and are qualified
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements
for
the acceptance of the American Depositary Shares into DTC. Each Beneficial
Owner
of American Depositary Shares held through DTC must rely on the procedures
of
DTC and the DTC Participants to exercise and be entitled to any rights
attributable to such American Depositary Shares. The Receipt evidencing the
American Depositary Shares held through DTC will be registered in the name
of a
nominee of DTC. So long as the American Depositary Shares are held through
DTC
or unless otherwise required by law, ownership of beneficial interests in the
Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained
by
(i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
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(2)
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Surrender
of Receipts and Withdrawal of Deposited
Securities
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Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by
this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making
of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof
and
in Section 5.9 and Exhibit B of the Deposit Agreement) and (ii) all fees,
taxes and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement,
the Company’s Articles of Incorporation and Bylaws, Section 7.9 of the
Deposit Agreement, Article (22) of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder of
the
American Depositary Shares evidenced hereby is entitled to delivery, to him
or
upon his order, of the Deposited Securities represented by the ADS so
surrendered. Subject to the last sentence of this paragraph, such Deposited
Securities may be delivered in certificated form or by electronic delivery.
ADS
may be surrendered for the purpose of withdrawing Deposited Securities by
delivery of a Receipt evidencing such ADS (if held in registered form) or by
book-entry delivery of such ADS to the Depositary.
A-2
A
Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper 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 (without unreasonable delay) at the
designated office of the Custodian (subject to the terms and conditions of
the
Deposit Agreement, to the Company’s Articles of Incorporation and Bylaws, and to
the provisions of or governing the Deposited Securities and applicable laws,
now
or hereafter in effect), to or upon the written order of the person or persons
designated in the order delivered to the Depositary as provided above, the
Deposited Securities represented by such ADSs, together with any certificate
or
other proper documents of or relating to title for the Deposited Securities
or
evidence of the electronic transfer thereof (if available) as the case may
be to
or for the account of such person. The Depositary may make delivery to such
person or persons at the Principal Office of the Depositary of any dividends
or
distributions with respect to the Deposited Securities represented 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 may, in its discretion, refuse to accept for surrender a number
of
American Depositary Shares representing a number of Shares other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a number
of
ADSs 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, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net
of
(a) applicable fees and charges of, and expenses incurred by, the Depositary
and
(b) taxes withheld) to the person surrendering the Receipt. 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 (to the extent
permitted by law) any cash or other property (other than securities) held in
respect of, and any certificate or certificates and other proper documents
of or
relating to title to, the Deposited Securities represented by such Receipt
to
the Depositary for delivery at the Principal Office of the Depositary, and
for
further delivery to such Holder. Such direction shall be given by letter or,
at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission
A-3
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(3)
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Transfers,
Split-Ups and Combinations of
Receipts
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Subject
to the terms and conditions of the Deposit Agreement, the Registrar shall
register transfers of Receipts on its books, upon surrender at the Principal
Office of the Depositary of a Receipt by the Holder thereof in person or by
duly
authorized attorney, properly endorsed or accompanied by proper instruments
of
transfer (including signature guarantees in accordance with standard industry
practice) and duly stamped as may be required by the laws of the State of New
York and of the United States of America, of the Republic of the Philippines
and
of any other applicable jurisdiction. Subject to the terms and conditions of
the
Deposit Agreement, including payment of the applicable fees and charges of
the
Depositary, the Depositary shall execute and deliver a new Receipt(s) (and
if
necessary, cause the Registrar to countersign such Receipt(s)) and deliver
same
to or upon the order of the person entitled to such Receipts evidencing the
same
aggregate number of ADSs as those evidenced by the Receipts surrendered. Upon
surrender of a Receipt or Receipts for the purpose of effecting a split-up
or
combination of such Receipt or Receipts upon payment of the applicable fees
and
charges of the Depositary, and subject to the terms and conditions of the
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
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(4)
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Pre-Conditions
to Registration, Transfer,
Etc.
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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 or the Custodian may require (i) payment
from the depositor of Shares or presenter of the Receipt of a sum sufficient
to
reimburse it for any tax 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 and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to
it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to
the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
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 good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Share
are listed, or under any provision of the Deposit Agreement or provisions of,
or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (22) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, the Holders of Receipts are entitled to surrender outstanding ADSs
to
withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company
or
the deposit of Shares in connection with voting at a shareholders’ meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities,
and
(iv) other circumstances specifically contemplated by Section I.A.(l) of
the General Instructions to Form F-6 (as such General Instructions may be
amended from time to time). Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under the Deposit Agreement any Shares
or
other Deposited Securities required to be registered under the provisions of
the
U.S. Securities Act of 1933, as amended, unless a registration statement is
in
effect as to such Shares.
A-4
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(5)
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Compliance
With Information Requests
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Notwithstanding
any other provision of the Deposit Agreement or this Receipt, each Holder and
Beneficial Owner of the ADSs represented hereby agrees to comply with requests
from the Company pursuant to the laws of the Republic of the Philippines, the
rules and requirements of the National Association of Securities Dealers and
any
other stock exchange on which the Shares are, or will be registered, traded
or
listed,
the
Company’s Articles of Incorporation and Bylaws, which are made to provide
information as to the capacity in which such Holder or Beneficial Owner owns
ADSs and regarding the identity of any other person interested in such ADSs
and
the nature of such interest and various other matters whether or not they are
Holders and/or Beneficial Owner at the time of such request. The Depositary
agrees to use reasonable efforts to forward any such requests to the Holders
and
to forward to the Company any such responses to such requests received by the
Depositary.
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(6)
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Liability
of Holder for Taxes, Duties and Other
Charges
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If
any
tax or other governmental charge shall become payable by the Depositary or
the
Custodian with respect to any Receipt or any Deposited Securities or ADSs,
such
tax, or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary
may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of the Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares,
and
the Depositary may refuse to issue ADSs, to deliver Receipts, register the
transfer, split-up or combination of ADRs and (subject to Article (22) hereof)
the withdrawal of Deposited Securities, until payment in full of such tax,
charge, penalty or interest is received. Every Holder and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian and each of
their
respective agents, directors, employees and Affiliates for, and 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.
A-5
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used
by
the Depositary to report distribution rates (which in any case will not be
less
than two decimal places). Any excess amount may be retained by the Depositary
as
an additional cost of conversion, irrespective of any other fees and expenses
payable or owing hereunder and shall not be subject to escheatment.
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(7)
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Representations
and Warranties of
Depositors
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Each
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that (i) such Shares (and the certificates therefor)
are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all pre-emptive (and similar) rights, if any,
with
respect to such Shares, have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented
for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim and are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities and (v) the Shares presented for deposit
have
not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares and the issuance,
cancellation and transfer of ADSs. If any such representations or warranties
are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
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(8)
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Filing
Proofs, Certificates and Other
Information
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Any
person presenting Shares for deposit, any Holder and any Beneficial Owner may
be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or
other
information as the Depositary deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (22) hereof and
the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of
the
proceeds thereof or the delivery of any Deposited Securities until such proof
or
other information is filed, or such certifications are executed, or such
representations and warranties made, or such information and documentation
are
provided.
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(9)
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Charges
of Depositary
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The
Depositary shall charge the following fees for the services performed under
the
terms of the Deposit Agreement; provided, however, that no fees shall be payable
upon distribution of cash dividends so long as the charging of such fee is
prohibited by the exchange, if any, upon which the ADSs are listed:
A-6
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(i)
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to
any person to whom ADSs are issued or to any person to whom a distribution
is made in respect of ADS distributions pursuant to stock dividends
or
other free distributions of stock, bonus distributions, stock splits
or
other distributions (except where converted to cash), a fee not in
excess
of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so issued under
the
terms of the Deposit Agreement to be determined by the
Depositary;
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(ii)
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to
any person surrendering ADSs for cancellation and withdrawal of Deposited
Securities including, inter
alia,
cash distributions made pursuant to a cancellation or withdrawal,
a fee
not in excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so
surrendered;
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(iii)
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to
any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100 ADS
held
for the distribution of cash proceeds, including cash dividends or
sale of
rights and other entitlements, not made pursuant to a cancellation
or
withdrawal;
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(iv)
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to
any holder of ADSs, a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or
portion thereof) issued upon the exercise of
rights;
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(v)
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for
the operation and maintenance costs in administering the ADSs an
annual
fee of U.S. $ 2.00 per 100 ADS; and
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(vi)
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in
connection with inspections of the relevant share register maintained
by
the local registrar, if applicable undertaken by the Depositary,
the
Custodian or their respective agents: an annual fee of U.S. $ 1.00
per 100
ADS (such fee to be assessed against Holders of record as of the
date or
dates set by the Depositary as it sees fit and collected at the sole
discretion of the Depositary by billing such Holders for such fee
or by
deducting such fee from one or more cash dividends or other cash
distributions.
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In
addition, Holders, Beneficial Owners, person depositing Shares for deposit
and
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
will be required to pay the following charges:
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(i)
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taxes
(including applicable interest and penalties) and other governmental
charges;
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(ii)
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such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities with the Foreign
Registrar and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any
nominees upon the making of deposits and withdrawals,
respectively;
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(iii)
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such
cable, telex , facsimile and electronic transmission and delivery
expenses
as are expressly provided in the Deposit Agreement to be at the expense
of
the person depositing or withdrawing Shares or Holders and Beneficial
Owners of ADSs;
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(iv)
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the
expenses and charges incurred by the Depositary in the conversion
of
foreign currency;
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A-7
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(v)
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such
fees and expenses as are incurred by the Depositary in connection
with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and
ADRs;
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(vi)
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the
fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities, including any fees of a central
depository for securities in the local market, where
applicable;
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(vii)
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any
additional fees, charges, costs or expenses that may be incurred
by the
Depositary from time to time in connection with the ownership, holding,
deposit, cancellation and withdrawal of Deposited Securities or ADRs,
as
the case may be.
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Any
other
charges and expenses of the Depositary under the Deposit Agreement will be
paid
by the Company upon agreement between the Depositary and the Company. All fees
and charges may, at any time and from time to time, be changed by agreement
between the Depositary and Company but, in the case of fees and charges payable
by Holders or Beneficial Owners, only in the manner contemplated by Article
(20)
of this Receipt.
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(10)
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Title
to Receipts
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It
is a
condition of this Receipt, and every successive Holder of this Receipt by
accepting or holding the same consents and agrees, that title to this Receipt
(and to each ADS evidenced hereby) is transferable by delivery of the Receipt,
provided it has been properly endorsed or accompanied by proper instruments
of
transfer, such Receipt being a certificated security under the laws of the
State
of New York. Notwithstanding any notice to the contrary, the Depositary may
deem
and treat the Holder of this Receipt (that is, the person in whose name this
Receipt is registered on the books of the Depositary) as the absolute owner
hereof for all purposes. The Depositary shall have no obligation or be subject
to any liability under the Deposit Agreement or this Receipt to any holder
of
this Receipt or any Beneficial Owner unless such holder is the Holder of this
Receipt registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s representative
is the Holder registered on the books of the Depositary.
|
(11)
|
Validity
of Receipt
|
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or enforceable for any purpose, unless this Receipt has been (i) dated,
(ii) signed by the manual or facsimile signature of a duly authorized signatory
of the Depositary, (iii) if a Registrar for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar and (iv) registered in the books
maintained by the Depositary or the Registrar, as applicable, for the issuance
and transfer of Receipts. Receipts bearing the facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time
of
signature was a duly-authorized signatory of the Depositary or the Registrar,
as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the execution and delivery
of
such Receipt by the Depositary or did not hold such office on the date of
issuance of such Receipts.
A-8
|
(12)
|
Available
Information; Reports; Inspection
of
Transfer Books
|
The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports
and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at 000 X Xxxxxx, X.X., Xxxxxxxxxx X.X.
00000. The Depositary shall make available during normal business hours on
any
Business Day for inspection by Holders at its Principal Office any reports
and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b)
made
generally available to the holders of such Deposited Securities by the
Company.
The
Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable
times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary’s or the
Registrar’s knowledge, for the purpose of communicating with Holders of such
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.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in good faith in connection with the performance of its
duties hereunder, or at the reasonable written request of the Company subject,
in all cases, to Article (22) hereof.
Dated:
|
DEUTSCHE
BANK TRUST
|
||
|
COMPANY
AMERICAS, as Depositary
|
||
|
By:
|
|
|
|
Vice
President
|
||
The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
A-9
EXHIBIT
A
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
| (13) |
Dividends
and Distributions in Cash, Shares,
etc.
|
Whenever
the Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of
the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes
withheld) to the Holders of record as of the ADS Record Date in proportion
to
the number of ADS representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. 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. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Any foreign currency received by the Depositary shall
be
converted upon the terms and conditions set forth in the Deposit
Agreement.
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall or cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees. Upon receipt of confirmation of
such deposit, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) distribute
to
the Holders as of the ADS Record Date in proportion to the number of ADSs held
as of the ADS Record Date, additional ADSs, which represent in aggregate the
number of Shares received as such dividend, or free distribution, subject to
the
terms of the Deposit Agreement (including, without limitation, the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes),
or
(ii) if additional ADSs are not so distributed, each ADS issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interest in the additional Shares distributed upon
the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds
upon
the terms set forth in the Deposit Agreement.
A-1
In
the
event that (x) the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which
the
Depositary is obligated to withhold, or, (y) if the Company, in the fulfilment
of its obligations under the Deposit Agreement, has either (a) furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no
such
registration statement has been declared effective), or (b) fails to timely
deliver the documentation contemplated in the Deposit Agreement, the Depositary
may dispose of all or a portion of such property (including Shares and rights
to
subscribe therefor) in such amounts and in such manner, including by public
or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of taxes and fees and charges of, and expenses incurred by, the Depositary)
to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Depositary shall, upon provision of all documentation
required under the Deposit Agreement, (including, without limitation, any legal
opinions of counsel the Depositary may request under the Deposit Agreement)
determine whether such distribution is lawful and reasonably practicable. If
so,
the Depositary shall, subject to the terms and conditions of the Deposit
Agreement, establish an ADS Record Date according to Article (14) hereof and
establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be distributed as in
the
case of a distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably practicable
or if the Depositary did not receive satisfactory documentation set forth in
the
Deposit Agreement, the Depositary shall, to the extent permitted by law,
distribute to Holders, on the basis of the same determination as is made in
the
local market in respect of the Shares for which no election is made, either
(x)
cash or (y) additional ADSs representing such additional Shares, in each case,
upon the terms described in the Deposit Agreement. Nothing herein shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of
Shares.
Upon
receipt by the Depositary of a notice indicating that the Company wishes rights
to subscribe for additional Shares to be made available to Holders of ADSs,
the
Company shall determine whether it is lawful and reasonably practicable to
make
such rights available to the Holders. The Depositary shall make such rights
available to any Holders only if the Company shall have timely requested that
such rights be made available to Holders, the Depositary shall have received
the
documentation required by the Deposit Agreement, and the Depositary shall have
determined that such distribution of rights is lawful and reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell
the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date and establish
procedures (x) to distribute such rights (by means of warrants or otherwise)
and
(y) to enable the Holders to exercise the rights (upon payment of the applicable
fees and charges of, and expenses incurred by, the Depositary and taxes).
Nothing herein or in the Deposit Agreement shall obligate the Depositary to
make
available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs). If (i) the Company does not timely request the
Depositary to make the rights available to Holders or if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails
to
receive the documentation required by the Deposit Agreement or determines it
is
not lawful or reasonably practicable to make the rights available to Holders,
or
(iii) any rights made available are not exercised and appear to be about to
lapse, the Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or otherwise,
at such place and upon such terms (including public and private sale) as it
may
deem proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes) upon the terms hereof and in the Deposit
Agreement. If the Depositary is unable to make any rights available to Holders
or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded
to
the Holders on behalf of the Company in connection with the rights distribution.
A-2
Notwithstanding
anything herein to the contrary, if registration (under the Securities Act
or
any other applicable law) of the rights or the securities to which any rights
relate may be required in order for the Company to offer such rights or such
securities to Holders and to sell the securities represented by such rights,
the
Depositary will not distribute such rights to the Holders (i) unless and until
a
registration statement under the Securities Act covering such offering is in
effect or (ii) unless the Company furnishes to the Depositary opinion(s) of
counsel for the Company in the United States and counsel to the Company in
any
other applicable country in which rights would be distributed, in each case
reasonably satisfactorily to the Depositary, to the effect that the offering
and
sale of such securities to Holders and Beneficial Owners are exempt from, or
do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Shares and rights to subscribe therefor) is subject
to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in
such
manner, including by public or private sale, as the Depositary deems necessary
and practicable to pay any such taxes or charges.
A-3
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. Nothing herein shall obligate
the
Company to file any registration statement in respect of any rights or Shares
or
other securities to be acquired upon the exercise of such rights.
Upon
receipt of a notice regarding property other than cash, Shares or rights to
purchase additional Shares, to be made to Holders of ADSs, the Depositary shall
determine, upon consultation with the Company, whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make
such
distribution unless (i) the Company shall have timely requested the Depositary
to make such distribution to Holders, (ii) the Depositary shall have received
the documentation required by the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is lawful and reasonably
practicable. Upon satisfaction of such conditions, the Depositary shall
distribute the property so received to the Holders of record as of the ADS
Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties)
or
other governmental charges applicable to the distribution.
If
the
conditions above are not satisfied, the Depositary shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem proper and shall distribute the proceeds of
such
sale received by the Depositary (net of (a) applicable fees and charges of,
and
expenses incurred by, the Depositary and (b) taxes) to the Holders upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to sell
such property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
|
(14)
|
Fixing
of Record Date
|
Whenever
necessary in connection with any distribution (whether in cash, shares, rights
or other distribution), or whenever for any reason the Depositary causes a
change in the number of Shares that are represented by each ADS, or whenever
the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it necessary or
convenient in connection with the giving of any notice, or any other matter,
the
Depositary shall fix a record date (“ADS
Record Date”)
for
the determination of the Holders who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any
such
meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this Receipt and the Deposit
Agreement, only the Holders of record at the close of business in New York
on
such ADS Record Date shall be entitled to receive such distributions, to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
A-4
|
(15)
|
Voting
of Deposited Securities
|
As
soon
as practicable after receipt of notice of any meeting at which the holders
of
Shares are entitled to vote, or of solicitation of consents or proxies from
holders of Shares or other Deposited Securities, the Depositary shall fix the
ADS Record Date in respect of such meeting or solicitation of such consent
or
proxy. The Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if the
request shall not have been received by the Depositary at least 30 days prior
to
the date of such vote or meeting), at the Company’s expense and provided no U.S.
legal prohibitions exist, mail by ordinary, regular mail delivery or by
electronic transmission (if agreed by the Company and the Depositary), unless
otherwise agreed in writing by the Company and the Depositary, to Holders as
of
the ADS Record Date: (a) such notice of meeting or solicitation of consent
or
proxies; (b) a statement that the Holders as of the ADS Record Date will be
entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company’s Articles of Incorporation and Bylaws and the provisions
of or governing Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as
to
the exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder’s ADSs; and (c) a brief
statement as to the manner in which such instructions may be given. Upon the
timely receipt of written instructions of a Holder of ADSs on the ADS Record
Date, the Depositary shall endeavour, insofar as practicable and permitted
under
applicable law and the provisions of the Company’s Articles of Incorporation and
Bylaws and the provisions of the Deposited Securities, to vote or cause the
Custodian to vote the Shares and/or other Deposited Securities represented
by
ADSs held by such Holder in accordance with such instructions.
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of, for
purposes of establishing a quorum or otherwise the Shares or other Deposited
Securities represented by ADSs except pursuant to and in accordance with such
written instructions from Holders. Shares or other Deposited Securities
represented by ADSs for which no specific voting instructions are received
by
the Depositary from the Holder shall not be voted.
Notwithstanding
the above, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any instructions
to
vote any of the Deposited Securities, or for the manner in which such vote
is
cast or the effect of any such vote.
A-5
|
(16)
|
Changes
Affecting Deposited
Securities
|
Upon
any
change in par value, split-up, cancellation, 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 otherwise is a party, any securities which shall be received
by
the Depositary or a Custodian in exchange for, or in conversion of or
replacement or otherwise in respect of, such Deposited Securities shall, to
the
extent permitted by law, be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence ADSs representing the right
to
receive such additional securities. Alternatively, the Depositary may, with
the
Company’s approval, and shall, if the Company shall so request, subject to the
terms of the Deposit Agreement and receipt of satisfactory documentation
contemplated by the Deposit Agreement, execute and deliver additional Receipts
as in the case of a stock dividend on the Shares, or call for the surrender
of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to
this
form of Receipt specifically describing such new Deposited Securities and/or
corporate change. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company’s approval, and shall if the Company requests,
subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such
place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of fees and charges of, and expenses incurred by,
the Depositary and taxes) for the account of the Holders otherwise entitled
to
such securities and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to the
Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
| (17) |
Exoneration
|
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement
or
shall incur any liability (i) if the Depositary, the Custodian or the Company
or
their respective controlling persons or agents shall be prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account
of,
or delayed in, doing or performing any act or thing required by the terms of
the
Deposit Agreement and this Receipt, by reason of any provision of any present
or
future law or regulation of the United States,
the
Republic of the Philippines or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or by reason of any
provision, present or future of the Company’s Articles of Incorporation and
Bylaws or any provision of or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control, (including,
without limitation, nationalization, expropriation, currency restrictions,
work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Company’s
Articles of Incorporation and Bylaws or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the Custodian
or
the Company or their respective controlling persons or agents in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to
be
competent to give such advice or information, (iv) for any inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Holders of ADS
or
(v) for any consequential or punitive damages for any breach of the terms of
the
Deposit Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely
and
shall be protected in acting upon any written notice, request, opinion or other
document believed by it to be genuine and to have been signed or presented
by
the proper party or parties. No disclaimer of liability under the Securities
Act
is intended by any provision of the Deposit Agreement.
A-6
| (18) |
Standard
of Care
|
The
Company and the Depositary and their respective agents assume no obligation
and
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except in accordance
with Section 5.8 of the Deposit Agreement, provided, that the Company and
the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in the Deposit Agreement without gross
negligence, wilful misconduct or bad faith. The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of
the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and
in
accordance with the terms of the Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth
of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness
of
any third party, for allowing any rights to lapse upon the terms of the Deposit
Agreement or for the failure or timeliness of any notice from the Company.
In no
event shall the Depositary or any of its Agents be liable for any indirect,
special, punitive or consequential damage.
A-7
| (19) |
Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
|
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of resignation delivered to the Company, such resignation to
be
effective on the earlier of (i) the 90th day after delivery thereof to the
Company, or (ii) upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement, save that,
any amounts, fees, costs or expenses owed to the Depositary under the Deposit
Agreement or in accordance with any other agreements otherwise agreed in writing
between the Company and the Depositary from time to time shall be paid to the
Depositary prior to such resignation. The Company shall use reasonable efforts
to appoint such successor depositary, and give notice to the Depositary of
such
appointment, not more than 90 days after delivery by the Depositary of written
notice of resignation as provided in the Deposit Agreement. The Depositary
may
at any time be removed by the Company by written notice of such removal which
notice shall be effective on the later of (i) the 90th day after delivery
thereof to the Depositary, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement save that, any amounts, fees, costs or expenses owed to the Depositary
under the Deposit Agreement or in accordance with any other agreements otherwise
agreed in writing between the Company and the Depositary from time to time
shall
be paid to the Depositary prior to such removal. In case at any time the
Depositary acting hereunder shall resign or be removed, the Company shall use
its reasonable 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. The predecessor depositary, upon payment of all sums due it and
on
the written request of the Company, shall (i) execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder (other than as contemplated in the Deposit Agreement), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of
the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders. Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution
or
filing of any document or any further act.
| (20) |
Amendment/Supplement
|
Subject
to the terms and conditions of this Article (20), and applicable law, this
Receipt and any provisions of the Deposit Agreement may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges of the Depositary in connection with foreign exchange control
regulations, and taxes and other governmental charges, delivery and other such
expenses), or which shall otherwise materially prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement 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 ADSs to be registered on Form F-6 under the Securities Act or (b)
the ADSs or Shares to be traded solely in electronic book-entry form and (ii)
do
not in either such case impose or increase any fees or charges to be borne
by
Holders, shall be deemed not to prejudice any substantial rights of Holders
or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
ADS, to consent and agree to such amendment or supplement and to be bound by
the
Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder 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 amendment or supplement of the Deposit Agreement 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, or rules or regulations.
A-8
| (21) |
Termination
|
The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by mailing notice of such termination to the Holders
of
all Receipts then outstanding at least 90 days prior to the date fixed in such
notice for such termination provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the
terms
of the Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time
to
time, prior to such termination shall take effect. If 90 days shall have expired
after (i) the Depositary shall have delivered to the Company a written notice
of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either
case
a successor depositary shall not have been appointed and accepted its
appointment as provided herein and in the Deposit Agreement, the Depositary
may
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 for such termination. On and after the date of termination of the Deposit
Agreement, the Holder will, upon surrender of such Holder’s Receipt at the
Principal Office of the Depositary, upon the payment of the charges of the
Depositary for the surrender of Receipts referred to in Article (2) hereof
and
in the Deposit Agreement and subject to the conditions and restrictions therein
set forth, and upon 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 such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and shall
not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, 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, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of
the
Holder in accordance with the terms and conditions of the Deposit Agreement
and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of one year from the date of termination of the Deposit
Agreement, 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, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered. After making
such
sale, the Depositary shall be discharged from all obligations under the Deposit
Agreement with respect to the Receipts and the Shares, Deposited Securities
and
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary
for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except as set forth in the Deposit
Agreement.
A-9
| (22) |
Compliance
with U.S. Securities Laws; Regulatory
Compliance
|
Notwithstanding
any provisions in this Receipt or the 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 Section I.A.(1) of
the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
| (23) |
Certain
Rights of the Depositary;
Limitations
|
Subject
to the further terms and provisions of this Article (23), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its affiliates and in ADSs. The Depositary
may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares furnished on behalf of the holder
thereof. In its capacity as Depositary, the Depositary shall not lend Shares
or
ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the
receipt of Shares pursuant to Section 2.3 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of ADSs pursuant to
Section 2.6 of the Deposit Agreement, including ADSs which were issued
under (i) above but for which Shares may not have been received (each such
transaction a “Pre-Release
Transaction”).
The
Depositary may receive ADSs in lieu of Shares under (i) above and receive Shares
in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will be
(a)
accompanied by or subject to a written agreement whereby the person or entity
(the “Applicant”)
to
whom ADSs or Shares are to be delivered (1) represents that at the time of
the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(2) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (4) agrees to any additional restrictions
or
requirements that the Depositary deems appropriate; (b) at all times fully
collateralized with cash, U.S. government securities 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 Depositary
will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary may also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with any one person on a case by case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above,
but
not earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant).
A-10
| (24) |
Ownership
Restrictions
|
Owners
and Beneficial Owners shall comply with any limitations on ownership of Shares
under the Articles of Incorporation of the Company or applicable Philippine
law
as if they held the number of Shares their American Depositary Shares represent.
The Company shall inform the Owners, Beneficial Owners and the Depositary of
any
such ownership restrictions in place from time to time.
A-11
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR
VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s)
unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
Name: _________________________________
By:
Title:
NOTICE:
The signature of the Holder to this assignment must correspond with the name
as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
If
the
endorsement be executed by an attorney, executor, administrator, trustee or
guardian, the person executing the endorsement must give his/her full title
in
such capacity and proper evidence of authority to act in such capacity, if
not
on file with the Depositary, must be forwarded with this Receipt.
SIGNATURE
GUARANTEED
_________________________________
A-12
