AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 dated as of January , 2004 (the "Amendment") to the
Deposit Agreement dated as of July 1 1996 (the "Deposit Agreement"), among
Telefonica del Peru S.A.A., a company organized under the laws of the Republic
of Peru (the "Company"), JPMorgan Chase Bank (f.k.a. Xxxxxx Guaranty Trust
Company of New York) as depositary (the "Depositary"), and all holders from time
to time of American Depositary Receipts ("ADRs") issued thereunder.
W I T N E S S E T H:
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WHEREAS, the Company and the Depositary entered into the Deposit
Agreement for the purposes set forth therein; and
WHEREAS, pursuant to paragraph (16) of the form of ADR set forth as
Exhibit A to the Deposit Agreement, the Company and the Depositary desire to
amend the terms of the Deposit Agreement and ADRs.
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
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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.
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ARTICLE II
AMENDMENTS
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SECTION 2.01. Deposit Agreement and form of ADR. All references in the
Deposit Agreement and form of ADR to the term "Deposit Agreement" shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement as
amended by this Amendment.
SECTION 2.02. All references in the Deposit Agreement and ADR to
"Xxxxxx Guaranty Trust Company of New York" shall be references to "JPMorgan
Chase Bank".
SECTION 2.03. Notices. Section 17(a) of the Deposit Agreement is
amended to read as follows:
JPMorgan Chase Bank
4 New York Plaza, 13th Floor
New York, New York 10004
Attention: ADR Administration
Facsimile: 000-000-0000
SECTION 2.04. Paragraph (17) of the form of ADR. Paragraph (17) of the
form of ADR is amended and restated in its entirety to read as follows:
"(17) Termination. The Depositary may, and shall at the
written direction of the Company, terminate the Deposit Agreement
and the ADRs by mailing notice of such termination to the record
holders of all ADRs at least 30 days prior to the date fixed in
such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further
acts under the Deposit Agreement and the ADRs, except to receive
and hold (or sell) distributions on Deposited Securities and
deliver Deposited Securities being withdrawn. As soon as
practicable after the earlier of May 1, 2004 and the expiration of
45 days after the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long
as it may lawfully do so) hold in a segregated account the net
proceeds of such sales, together with any other cash then held by
it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the holders of ADRs entitled
thereto which have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all
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obligations in respect of the Deposit Agreement and the ADRs,
except to account for such net proceeds and other cash. After the
date so fixed for termination, the Company shall be discharged
from all obligations under the Deposit Agreement except for
certain of its obligations to the Depositary and its agents."
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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SECTION 3.01. Representations and Warranties. The Company represents
and warrants to the Depositary and the holders of ADRs that:
(a) This Amendment, the Deposit Agreement and all other documentation
executed and delivered by the Company in connection therewith, have been duly
and validly authorized, executed and delivered by the Company, and 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;
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment, the Deposit Agreement or any
other document furnished hereunder or thereunder in the Republic of Peru,
neither of such agreements need to be filed or recorded with any court or other
authority in the Republic of Peru, nor does any stamp or similar tax or
governmental charge need to be paid in the Republic of Peru on or in respect of
such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is, to the best of its knowledge after due
inquiry, true, accurate and correct.
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ARTICLE IV
MISCELLANEOUS
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SECTION 4.01. Effective Date. This Amendment is dated as of the date
set forth above and shall be effective as of the date (the "Effective Date")
which is 30 days from the date in which notice of the amendments set forth
herein are given to record holders of outstanding ADRs.
SECTION 4.02. Consent by Continuing Holders. Every holder of an
outstanding ADR at the Effective Date shall be deemed, by continuing to hold
such ADR, to consent and agree to this Amendment and to the bound by the Deposit
Agreement as amended hereby.
SECTION 4.03. Outstanding ADRs. The Depositary shall not call in for
exchange any ADRs issued prior to the Effective Date that do not reflect the
changes to the form of ADR effected hereby (as set forth in Exhibit A hereto).
Such ADRs shall be deemed amended to reflect such changes without any action on
the part of the holders of ADRs, the Company, the Depositary or any other person
or entity.
SECTION 4.04. Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 16 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.
SECTION 4.05. GOVERNING LAW. THIS AMENDMENT SHALL BE INTERPRETED AND
ALL RIGHTS AND OBLIGATIONS HEREUNDER AND THE PROVISIONS HEREOF SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
Section 4.06. Counterparts. This Amendment 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
Amendment and the Deposit Agreement
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shall be filed with the Depositary and the Custodian and shall be open to
inspection at the principal office of the Depositary and main office of the
Custodian by any record holder of the ADR during business hours.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
Telefonica del Peru S.A.A.
By
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Name:
Title:
By
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Name:
Title:
JPMorgan Chase Bank
By
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Name:
Title:
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
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Number No. of ADSs:
Each ADS represents
Ten Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
CLASS B SHARES, NOMINAL VALUE 1.00 NUEVO SOL EACH
of
TELEFONICA DEL PERU S.A.A.
(Incorporated under the
laws of the Republic of Peru)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder (the
"Depositary"), hereby certifies that ______ is the registered owner (a "Holder")
of American Depositary Shares ("ADSs"), each (subject to paragraph (13))
representing ten Class B shares, nominal value 1.00 Nuevo Sol each (including
the rights to receive Shares described in paragraph (1), "Shares" and, together
with any other securities, cash or property from time to time held by the
Depositary in respect or in lieu of deposited Shares, the "Deposited
Securities"), of Telefonica del Peru S.A.A., a corporation organized under the
laws of the Republic of Peru (the "Company"), deposited at the Lima office of
Banco Xxxxx Ltdo., as Custodian (subject to paragraph (15), the "Custodian"),
under the Deposit Agreement dated as of July 1, 1996 (as amended from time to
time, the "Deposit Agreement") among the Company, the Depositary and all Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State of
New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer Office (defined in paragraph (3)) only against deposit
with the Custodian of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
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securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 20% of all ADSs (excluding those evidenced by Pre-released ADRs), except to
the extent that the Depositary (in its sole discretion) determines that unusual
market conditions require the issuance of Pre-released ADRs in addition to 20%
of all such ADSs and (iv) the Depositary shall not have received notice from the
Company to stop the issuance of Pre-released ADRs (which notice shall be given
at least two business days in advance of its effective date) or, if received,
such notice shall not have become effective. The Depositary may retain for its
own account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing
Shares hereunder represents and warrants that such Shares are validly issued and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that the
person making such deposit is duly authorized so to do and that such Shares (A)
are not "restricted securities" as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary shall use its reasonable
efforts to refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with the Securities Act
of 1933. The Depositary will not deliver Deposited Securities except upon
receipt and cancellation of ADRs in exchange therefor.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of this ADR in form satisfactory to the Depositary at the
Transfer Office, the Holder hereof is entitled to delivery at the Custodian's
office of the Deposited Securities at the time represented by the ADSs evidenced
by this ADR. At the request, risk and expense of the Holder hereof, the
Depositary may deliver such Deposited Securities at such other place as may have
been requested by the Holder. Notwithstanding any other provision of the Deposit
Agreement or this ADR, the withdrawal of Deposited Securities may be restricted
only for the reasons set forth in General Instruction I.A.(1) of Form F-6 under
the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, which
at all reasonable times will be open for inspection by Holders and the Company
for the purpose of communicating with Holders in the interest of the business of
the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of negotiable instruments under the laws of the
State of New York; provided that the Depositary, notwithstanding any notice to
the contrary, may treat the person in whose name this ADR is registered on the
ADR Register as the absolute owner hereof for all purposes. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR, evidencing the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed or accompanied by proper instruments of transfer and duly stamped as
may be required by applicable law; provided that the Depositary may close the
ADR Register at any time or from time to time when deemed expedient by it, upon
notice to the Company in the case of a closing of the ADR Register outside of
the ordinary course of business, or requested by the Company.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7)
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of this ADR; (b) the production of proof satisfactory to it of (i) the identity
and genuineness of any signature and (ii) such other information, including
without limitation, information as to citizenship, residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations, provisions of or governing Deposited Securities and terms of
the Deposit Agreement and this ADR, as it may deem necessary or proper; and (c)
compliance with such regulations as the Depositary may establish consistent with
the Deposit Agreement. The issuance of ADRs, the acceptance of deposits of
Shares, the registration, registration of transfer, split-up or combination of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or when
any such action is deemed advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable by
or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary and the Company shall have no liability
therefor. The Depositary may refuse to effect any registration, registration of
transfer, split-up or combination hereof or, subject to the last sentence of
paragraph (2), any withdrawal of such Deposited Securities until such payment is
made. The Depositary may also deduct from any distributions on or in respect of
Deposited Securities, or may sell by public or private sale for the account of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. The Depositary will make available to the Company or its agent such
information from its records as the Company may reasonably request in order to
enable the Company or its agent to file necessary reports with governmental
authorities or agencies. If the Depositary determines that any distribution in
property other than cash (including Shares or rights) on Deposited Securities is
subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities (including the rules of the Lima Stock
Exchange) may require disclosure of or impose limits on beneficial or other
ownership of Deposited Securities, other Shares and other securities and may
provide for blocking transfer, voting or other rights to enforce such disclosure
or limits, Holders and all persons holding ADRs agree to comply with all such
disclosure requirements and ownership limitations and to cooperate with the
Depositary in the Depositary's compliance with any Company instructions in
respect thereof, and the Depositary will use reasonable efforts to comply with
such Company instructions.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADRs are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADRs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
evidenced by the ADRs delivered or surrendered; provided, however that the
Depositary shall not charge a fee in connection with the initial deposit of
Shares in connection with the offering. The Depositary may sell (by public or
private sale) sufficient securities and property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay such
charge. The Company will pay all other charges and expenses of the Depositary
and any agent of the Depositary (except the Custodian) pursuant to agreements
from time to time between the Company and the Depositary, except (i) stock
transfer or other taxes and other governmental charges (which are payable by
Holders or persons depositing Shares), (ii) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable by
such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register in
connection with the deposit or withdrawal
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of Deposited Securities (which are payable by persons depositing Shares or
Holders withdrawing Deposited Securities; there are no such fees in respect of
the Shares as of the date of the Deposit Agreement) and (iv) expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency). These charges may be
changed in the manner indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will mail copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the Commission. Such reports and other information may be
inspected and copied at public reference facilities maintained by the Commission
located at the date hereof at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By ...............................
Authorized Officer
The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
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[FORM OF REVERSE OF RECEIPT]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will distribute by mail to each
Holder entitled thereto on the record date set by the Depositary therefor at
such Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs:
(a) Cash: Any U.S. dollars available to the Depositary resulting from a
cash dividend or other cash distribution or the net proceeds of sales of any
other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to appropriate
adjustments for (i) taxes withheld, (ii) such distribution being impermissible
or impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. Any such U.S. dollars available will be distributed by checks drawn on a
bank in the United States for whole dollars and cents;
(b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash;
(c) Rights. (i) Warrants or other instruments in the discretion of the
Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute same
(the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited markets
therefor, their short duration or otherwise, nothing (and any Rights may lapse).
The Depositary will not make available to Holders any Rights unless a
registration statement with respect to such Rights under the Securities Act of
1933 is in effect or unless the offering and sale of such Rights to such Holders
is exempt from registration thereunder. Should any distribution of Rights not be
possible or if the Depositary deems such distribution is not feasible, the
Depositary intends to endeavor to dispose of the Rights for the benefit of the
Holders, as stated above. The Company will have no obligation to file any
registration statement to permit offering Rights to Holders; and
(d) Other Distributions. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), by any means that
the Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents (any fractional cents being withheld without
liability for interest and added to future Cash distributions).
(e) Notwithstanding the foregoing provisions of this paragraph (10),
before the Depositary shall sell or otherwise dispose of, for the benefit of
Holders, any Share Distributions (except to avoid fractional ADSs), Rights or
Other Distributions, the Depositary shall use reasonable efforts to advise the
Company of such impending sale or other disposition and follow any reasonable
instructions, to the extent such instructions are in keeping with commercially
reasonable standards, received from the Company as to the manner and form the
sale or disposition shall
take. The Company and the Depositary agree that the Depositary shall incur no
liability in connection with the fairness of the price received for such Shares
provided such Shares are sold in accordance with the Company's instructions.
(11) Record Dates. The Depositary shall, after consultation with the
Company if practicable, fix a record date (which shall be as near as practicable
to any corresponding record date set by the Company) for the determination of
the Holders who shall be entitled to receive any distribution on or in respect
of Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Securities, the Depositary shall mail to
Holders a notice stating (a) such information as is contained in such notice and
any solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor will be entitled to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
To the extent such instructions are not so received by the Depositary from
any Holder, the Depositary shall deem such Holder to have so instructed the
Depositary to give a discretionary proxy to a person designated by the Company
and the Depositary shall endeavor insofar as practicable to give a discretionary
proxy to a person designated by the Company to vote the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs as to which such
instructions are not so given. Notwithstanding anything to the contrary
contained herein, the Depositary shall not be obligated to give any such deemed
instruction unless and until the Depositary has been provided with an opinion,
which may be given at the time of entering into the Deposit Agreement, of
counsel to the Company, in form and substance satisfactory to the Depositary, to
the effect that (i) the granting of such discretionary proxy does not subject
the Depositary to any reporting obligations in the Republic of Peru, (ii) the
granting of such proxy will not result in a violation of Peruvian law, rule,
regulation or permit and (iii) the voting arrangement and proxy as contemplated
herein will be given effect under Peruvian law. If after the date such opinion
is delivered to the Depositary the Company is advised by counsel that there has
occurred a change in Peruvian law such that the foregoing opinion could no
longer be rendered favorably in whole or in part, the Company shall promptly
notify the Depositary of such change and the Depositary shall thereafter have no
obligation to give any such discretionary proxy. The Company agrees to direct
its counsel to inform it of any such changes in Peruvian law.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, after consultation with the Company
to the extent practicable, and shall, if the Company so requests, amend this ADR
or distribute additional or amended ADRs (with or without calling this ADR for
exchange) or cash, securities or property on the record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all or
substantially all the assets of the Company, and to the extent the Depositary
does not so amend this ADR or make a distribution to Holders to reflect any of
the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities
and each ADS evidenced by this ADR shall automatically represent its pro rata
interest in the Deposited Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Security, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this
ADR provides shall be done or performed by it, or (ii) by reason of any exercise
or failure to exercise any discretion given it in the Deposit Agreement or this
ADR; (b) assume no liability except to perform its obligations to the extent
they are specifically set forth in this ADR and the Deposit Agreement without
gross negligence or bad faith; (c) be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR; or (d) not be liable for any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, or any other
person believed by it to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions (including deemed instructions) to vote any of the
Deposited Securities, for the manner in which any such vote is cast or for the
effect of any such vote, provided that such action or non-action by the
Depositary is in good faith. The Depositary and its agents may own and deal in
any class of securities of the Company and its affiliates and in ADRs. The
Company has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company and its
agents under certain circumstances. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
may resign as Depositary by written notice of its election to do so delivered to
the Company, or be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary; such resignation or removal shall take
effect upon the appointment of and acceptance by a successor depositary. The
Depositary may appoint substitute or additional Custodians and the term
"Custodian" refers to each Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary, provided
that any amendment that imposes or increases any fees or charges (other than
stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, 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 of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law.
(17) Termination. The Depositary may, and shall at the written direction of
the Company, terminate the Deposit Agreement and the ADRs by mailing notice of
such termination to the record holders of all ADRs at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and the ADRs, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the earlier of May 1, 2004 and the
expiration of 45 days after the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata benefit of the holders
of ADRs entitled thereto which have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations in
respect of the Deposit Agreement and the ADRs, except to account for such net
proceeds and other cash. After the date so fixed for termination, the Company
shall be discharged from all obligations under the Deposit Agreement except for
certain of its obligations to the Depositary and its agents.
