AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 (the "Amendment") dated as of January , 2003 to the
Preferred Stock Deposit Agreement dated as of November 29, 1994, as amended by
Amendment No. 1 to Preferred Stock Deposit Agreement dated as of September 6,
1999 (as so amended, the "Deposit Agreement") among JPMorgan Chase Bank, as
successor depositary, and all holders from time to time of Global Depositary
Receipts (the "GDRs") evidencing Global Depositary Shares ("GDSs") representing
Series III Convertible Preferred Stock ("Shares") of Philippine Long Distance
Telephone Company, a corporation organized under the laws of the Republic of the
Philippines, and its successors (the "Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Citibank, N.A. and the holders of GDRs issued under the
Deposit Agreement entered into the Deposit Agreement for the purposes set forth
therein;
WHEREAS, Citibank, N.A. has resigned as depositary under the Deposit
Agreement and the corresponding Preferred Stock Agreement dated as of November
29, 1994, as amended by Amendment No. 1 to Preferred Stock Agreement dated as of
September 6, 1999 between Citibank, N.A. and the Company (as so amended, the
"Preferred Stock Agreement") and the Company has appointed JPMorgan Chase Bank
as successor depositary under the Deposit Agreement and the Preferred Stock
Agreement;
WHEREAS, JPMorgan Chase Bank has accepted its appointment as successor
depositary (the "Depositary") under the Deposit Agreement and Preferred Stock
Agreement;
WHEREAS, the Company desires to continue to provide for the deposit of
Shares with the Depositary or the Custodian as agent for the Depositary and for
the execution and delivery of GDRs evidencing GDSs representing the Shares so
deposited;
WHEREAS, the Depositary desires to amend and supplement the terms of
the Deposit Agreement and form of GDRs inter alia to reflect the appointment of
JPMorgan Chase Bank as the successor depositary.
NOW, THEREFORE, the Depositary hereby amends and supplements the GDRs
and the Deposit Agreement, effective as of the Effective Date set forth in
Section 4.01 hereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used but which are not
otherwise defined herein shall have the respective meanings given to them in the
Deposit Agreement.
ARTICLE II
AMENDMENT TO DEPOSIT AGREEMENT
Section 2.01. Except with respect to the Custodian, all references in
the Deposit Agreement to "Citibank, N.A." or the "Depositary" shall be
references to "JPMorgan Chase Bank".
Section 2.02. All references in the Deposit Agreement to the "Deposit
Agreement" shall hereby mean the Deposit Agreement as amended and supplemented
by this Agreement and as further amended and supplemented from time to time.
Section 2.03. Section 1.12 of the Deposit Agreement is amended to read
as follows:
GDRs. The term "GDRs" shall mean the Global Depositary Receipts
executed and delivered hereunder. GDRs may be either in physical
certificated form or Direct Registration GDRs. GDRs in physical
certificated form, and the terms and conditions governing the Direct
Registration GDRs (as hereinafter defined), shall be substantially in the
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form of Exhibit A annexed hereto (the "form of GDR"). The term "Direct
Registration GDR" means an GDR, the ownership of which is recorded on the
Direct Registration System. References to "GDRs" shall include certificated
GDRs and Direct Registration GDRs, unless the context otherwise requires.
The form of GDR is hereby incorporated herein and made a part hereof; the
provisions of the form of GDR shall be binding upon the parties hereto.
Section 2.04. Section 1.16 of the Deposit Agreement is amended by
replacing "Citicorp Trade Services, Limited, a corporation organized under the
laws of Hong Kong" with "Xxxxxx & Co."
Section 2.05. The address of the Depositary set forth in Section 1.18
of the Deposit Agreement is amended to read "1 Chase Xxxxxxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000."
Section 2.06. The following new definitions are inserted into Article I
of the Deposit Agreement:
Section 1.23. Deliver, Execute, Issue, Register, Surrender, Transfer or
Cancel . The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration GDRs,
shall refer to an entry or entries or an electronic transfer or transfers
in the Direct Registration System.
Section 1.24. Direct Registration System. The term "Direct Registration
System" means the system for the uncertificated registration of ownership
of securities established by The Depository Trust & Clearing Corporation
("DTCC") and utilized by the Depositary pursuant to which the Depositary
may record the ownership of GDRs without the issuance of a certificate,
which ownership shall be evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto. For purposes hereof, the Direct
Registration System shall include access to the Profile Modification System
maintained by DTCC which provides for automated transfer of ownership
between DTCC and the Depositary.
Section 2.07. The first three paragraphs of Section 2.01 of the Deposit
Agreement are hereby amended to read as follows:
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GDRs in certificated form shall be engraved, printed or otherwise
reproduced at the discretion of the Depositary in accordance with its
customary practices in its Global depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety
paper, and shall be substantially in the form set forth in the form of GDR,
with such changes as may be required by the Depositary or the Company to
comply with their obligations hereunder, any applicable law, regulation or
usage or to indicate any special limitations or restrictions to which any
particular GDRs are subject. GDRs may be issued in denominations of any
number of GDSs. GDRs in certificated form shall be executed by the
Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. GDRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized
officer of the Depositary shall bind the Depositary, notwithstanding that
such officer has ceased to hold such office prior to the delivery of such
GDRs.
Notwithstanding anything in this Deposit Agreement or in the form
of GDR to the contrary, GDSs shall be evidenced by Direct Registration
GDRs, unless certificated GDRs are specifically requested by the Holder.
Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of GDR, regardless of whether their GDRs are
Direct Registration GDRs or certificated GDRs.
Section 2.08. Section 2.03 of the Deposit Agreement is amended to
include the following at the conclusion thereof:
Notwithstanding anything in this Deposit Agreement to the contrary, to the
extent the Depositary so desires, GDSs shall be evidenced by GDR reflected
on the Direct Registration System unless certificated GDRs are specifically
requested by the Holder. At the request of a Holder, the Depositary shall,
for the purpose of substituting a certificated GDR with a Direct
Registration GDR, or vice versa, execute and deliver a certificated GDR or
a Direct Registration GDR, as the case may be, for any authorized number of
GDSs requested, evidencing the same aggregate number of GDSs as those
evidenced by the certificated GDR or Direct Registration GDR, as the case
may be, substituted.
Section 2.09. Section 2.08 of the Deposit Agreement is amended to read
as follows:
The Depositary shall execute and deliver a new Direct Registration GDR in
exchange and substitution for any mutilated certificated GDR upon
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cancellation thereof or in lieu of and in substitution for such destroyed,
lost or stolen certificated GDR, unless the Depositary has notice that such
GDR has been acquired by a bona fide purchaser, upon the Holder thereof
filing with the Depositary a request for such execution and delivery and a
sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
Section 2.10. The following is inserted at the end of the first
paragraph of Section 5.02 of the Deposit Agreement:
In no event shall the Depositary or any of its agents be liable for any
indirect, special, punitive or consequential damages.
Section 2.11. The first two sentences of Section 5.04 of the Deposit
Agreement are amended to read as follows:
The Depositary may at any time resign as Depositary hereunder by
30 days' written notice of its election so to do to the Company, such
resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided. The
Depositary may at any time be removed by the Company by 30 days prior
written notice of such removal.
In case at any time the Depositary acting hereunder resigns or is
removed, the Company has agreed to use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, The City of New York.
Section 2.12. The address of the Depositary set forth in second
paragraph of Section 7.05 of the Deposit Agreement is amended to read:
JPMorgan Xxxxx Xxxx, 0 Xxxxx Xxxxxxxxx Plaza, 40th Floor, New York, New
York 10081, Attention: GDR Department, Fax: (000) 000-0000.
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ARTICLE III
AMENDMENTS TO FORM OF GDR
Section 3.01. The form of Receipt set forth in Exhibit A to the Deposit
Agreement (the "form of GDR") is amended as provided in this Article.
Section 3.02. Except with respect to the Custodian, all references in
the form of GDR to "Citibank, N.A." or the "Depositary" shall be references to
"JPMorgan Chase Bank".
Section 3.03. The initial paragraph of the form of GDR is amended to
read as follows:
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder (the
"Depositary"), hereby certifies that is the owner of that number of
Global Depositary Shares ("GDSs"), indicated on the records of the
Depositary, representing deposited fully paid Series III Convertible
Preferred Stock (the "Shares") convertible into Common Stock, including
evidence of rights to receive such Shares (including, but not limited to,
purchase invoices as may effectuate the legal transfer of title to shares
under Philippine law), of Philippines Long Distance Telephone Company, a
corporation organized under the laws of the Republic of the Philippines
(the "Company"). At the date of the Deposit Agreement (as hereafter
defined), each GDS represents one (1) Share deposited under the Deposit
Agreement with the Custodian, which at the date of execution of the Deposit
Agreement, as amended, is the Manila branch of Citibank, N.A. (the
"Custodian"). The Deposit Agreement and this Global Depositary Receipt
("GDR") (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.
Section 3.04. The first sentence of paragraph (1) of the form of GDR is
amended to read as follows:
This Global Depositary Receipt is issued pursuant to the Preferred Stock
Deposit Agreement dated as of October 19, 1994, as amended as of January ,
2003 (as so amended and further amended from time to time, the "Deposit
Agreement"), by and among the Depositary and all Holders from time to time
of GDRs issued thereunder, each of whom by accepting an GDR or acquiring
any beneficial interest therein agrees to become a party
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thereto and becomes bound by all terms and provisions thereof.
Section 3.05. Paragraph (3) of the form of GDR is amended to include
the following sentence at the end of the second paragraph thereof:
At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated GDR with a Direct Registration GDR, or vice
versa, execute and deliver a certificated GDR or a Direct Registration GDR,
as the case may be, for any authorized number of GDSs requested, evidencing
the same aggregate number of GDSs as those evidenced by the certificated
GDR or Direct Registration GDR, as the case may be, substituted.
Section 3.06. The following language is inserted at the end of the
first paragraph of paragraph (25) of the form of GDR:
In no event shall the Depositary or any of its agents be liable for any
indirect, special, punitive or consequential damages.
Section 3.07. The first two paragraphs of Paragraph (27) of the form of
GDR are amended to read as follows:
The Depositary may at any time resign as Depositary under the
Deposit Agreement by 30 days' written notice of its election so to do to
the Company, such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. The Depositary may at any time be removed by the
Company by 30 days prior written notice of such removal.
In case at any time the Depositary acting under the Deposit
Agreement resigns or is removed, the Company has agreed to use its best
efforts to appoint a successor depositary, which shall be a bank or trust
company having an office in the Borough of Manhattan, The City of New York.
Any corporation into or with which the Depositary may be merged or
consolidated will be the successor of the Depositary without the execution
or filing of any document or any further act.
ARTICLE IV
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MISCELLANEOUS
SECTION 4.01. Effective Date. This Amendment is dated as of the date
set forth above and shall be effective as of the time of effectiveness of the
Registration Statement on Form F-6 to be filed by the Depositary in connection
with its appointment as successor Depositary (the "Effective Date"). After the
Effective Date, the Depositary agrees to promptly mail notice of its appointment
to the Holders.
SECTION 4.02. Outstanding GDRs. GDRs issued prior or subsequent to the
date hereof, which do not reflect the changes to the form of GDR effected hereby
(as set forth in Exhibit A hereto), do not need to be called in for exchange and
may remain outstanding until such time as the Holders 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, including the printing or overstamping of the form of GDR to
reflect the changes to the form of GDR effected hereby.
SECTION 4.03. Indemnification. The Depositary shall be entitled to the
benefits of the indemnification provisions of Section 5.09 of the Deposit
Agreement in connection with any and all liability it may incur as a result of
the terms of this Amendment and the transactions contemplated herein, subject to
the exceptions provided therein.
SECTION 4.04. Ratification. Except as expressly amended hereby, the
terms, covenants and conditions of the Deposit Agreement, as originally
executed, shall remain in full force and effect.
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IN WITNESS WHEREOF, the Depositary has duly executed this Amendment as
of the Effective Date and all holders shall become parties hereto upon
acceptance by them of GDRs issued in accordance with the terms hereof, by
continuing to hold their current GDRs or upon acquisition of any beneficial
interest in GDRs.
JPMORGAN CHASE BANK
By:
-----------------------------------------
Name:
Title: Vice President
Pursuant to the provisions of Section 6.01 of the Deposit Agreement,
the Company hereby consents to the terms of this Amendment No. 2 to Deposit
Agreement as executed by the Depositary.
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY
By:
---------------------------------------
Name:
Title:
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Exhibit (a)
Number
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Global Depositary Shares (One
Global Depositary Share
Represents One Fully Paid Share of
Series III Convertible Preferred
Stock)
[FORM OF FACE OF GLOBAL DEPOSITARY RECEIPT]
GLOBAL DEPOSITARY RECEIPT
evidencing
GLOBAL DEPOSITARY SHARES
representing
DEPOSITED FULLY PAID SHARES OF SERIES III
CONVERTIBLE PREFERRED STOCK
of
PHILIPPINE LONG DISTANCE TELEPHONE COMPANY
(Incorporated under the laws of
the Republic of the Philippines)
THE HOLDER OF THIS GLOBAL DEPOSITARY RECEIPT SHALL NOT HAVE, AND SHALL NOT HAVE
THE RIGHT TO INSTRUCT THE DEPOSITARY AS TO THE EXERCISE OF, ANY DISSENTER'S
RIGHTS PROVIDED TO HOLDERS OF SHARES UNDER PHILIPPINE LAW.
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder
(the "Depositary"), hereby certifies that is the owner of that number of
Global Depositary Shares ("GDSs"), indicated on the records of the Depositary,
representing deposited fully paid Series III
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Convertible Preferred Stock (the "Shares") convertible into Common Stock,
including evidence of rights to receive such Shares (including, but not limited
to, purchase invoices as may effectuate the legal transfer of title to shares
under Philippine law), of Philippines Long Distance Telephone Company, a
corporation organized under the laws of the Republic of the Philippines (the
"Company"). At the date of the Deposit Agreement (as hereafter defined), each
GDS represents one (1) Share deposited under the Deposit Agreement with the
Custodian, which at the date of execution of the Deposit Agreement, as amended,
is the Manila branch of Citibank, N.A. (the "Custodian"). The Deposit Agreement
and this Global Depositary Receipt ("GDR") (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) The Deposit Agreement. This Global Depositary Receipt is issued
pursuant to the Preferred Stock Deposit Agreement dated as of October 19, 1994,
as amended as of January , 2003 (as so amended and further amended from time to
time, the "Deposit Agreement"), by and among the Depositary and all Holders from
time to time of GDRs issued thereunder, each of whom by accepting an GDR or
acquiring any beneficial interest therein agrees to become a party thereto and
becomes bound by all terms and provisions thereof. The Deposit Agreement sets
forth the rights of Holders of the GDRs and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property and cash,
collectively, the "Deposited Securities"). Copies of the Deposit Agreement are
on file at the Principal New York Office of the Depositary and at the principal
office of the Custodian. The statements made on the face and the reverse of this
GDR are summaries of certain provisions of the Deposit Agreement and are
qualified by and subject to the detailed provisions of the Deposit Agreement, to
which reference is hereby made. Terms defined in the Deposit Agreement and not
otherwise defined herein have the same defined meanings set forth in the Deposit
Agreement.
(2) Surrender of GDRs and Withdrawal of Deposited Securities. Subject to
the terms and conditions of the Deposit Agreement upon (i) surrender of GDSs by
delivery of GDRs at the Principal New York Office of the Depositary for the
purpose of withdrawal of the Deposited Securities represented thereby and (ii)
payment of all fees (including the fees of the Depositary (which are summarized
in paragraph (9) of this GDR) provided in the Deposit Agreement, including
Exhibit B thereto), taxes (including stamp, transfer and capital gains taxes)
and governmental or other charges payable in connection with such surrender and
cancellation of GDRs, a Holder shall be entitled to delivery, to him or upon his
order, of the Shares and any other documents of title at the time represented by
the GDR together with such other delivery of Deposited Securities (other than
Shares) then represented by GDSs as the Depositary may effect.
A GDR surrendered and written instructions received for such purposes
may be required by the Depositary to be properly endorsed or accompanied by
properly executed instruments of transfer. The person requesting withdrawal of
Deposited Securities shall deliver to the Depositary written instructions
requesting the Depositary to cause the Deposited Securities being withdrawn to
be delivered (subject to any applicable clearing procedures and provisions of
the Amended Articles of Incorporation of the Company) to or upon the written
order of a person or persons designated in such order.
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Upon the receipt of such written instructions and compliance with the
terms of Section 2.05 of the Deposit Agreement, the Depositary will direct the
Custodian to deliver at the principal office of such Custodian, subject to the
terms and conditions of the Deposit Agreement and applicable laws and
regulations, to or upon the written order of the person or persons designated in
such written instructions, the Deposited Securities represented by the GDSs
evidenced by such surrendered GDR to or for the account of such person; except
that the Depositary may, subject to applicable law, make delivery to such person
or persons at the Principal New York Office of the Depositary of any dividends
or distributions (other than dividends or distributions consisting of Shares)
with respect to the Deposited Securities to be withdrawn, or of any proceeds of
sale of any dividends, distributions (other than dividends or distributions
consisting of Shares) or rights with respect to the Deposited Securities which
may at the time be held by the Depositary.
At the request, risk and expense of any Holder so surrendering a GDR or
submitting such written instructions for delivery, and for the account of such
Holder, and provided that payment of any applicable tax or governmental or other
charge shall have been made in accordance with Section 3.02 of the Deposit
Agreement, the Depositary will direct the Custodian to forward any cash or other
property (other than rights) comprising, and forward a certificate or
certificates (if certificates may be delivered) and other proper documents of
title, if any, for, the Deposited Securities represented by the GDSs evidenced
by such GDR to the Depositary for delivery at the Principal New York Office of
the Depositary. Such direction will be given by letter or, at the request, risk
and expense of such Holder, by cable, telex or facsimile transmission.
The Depositary will not accept surrender of GDRs or written
instructions for the purpose of withdrawal of less than one Share. In addition,
the Depositary shall only honor requests for withdrawal of whole numbers of
Shares. In the case of surrender of a GDR evidencing a number of GDSs
representing other than a whole number of Shares, the Depositary will cause
delivery of the appropriate whole number of Shares as provided in the Deposit
Agreement and summarized herein, and will execute and deliver to the person
surrendering such GDR a new GDR evidencing GDSs representing any remaining
fractional Share or continue to reflect on its records the remaining fractional
Shares.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, 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.
(3) Transfers, Split-ups and Combinations. Subject to the limitations
stated herein and in the Deposit Agreement, this GDR is transferable on the
books of the Depositary by the Holder hereof in person or by duly authorized
attorney, upon surrender (at the Depositary's Principal New York Office) of this
GDR 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 any applicable law). The Depositary may
close the transfer books at any time or from time to time when deemed expedient
by it in connection with the performance of its duties
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under the Deposit Agreement.
This GDR may be split into other GDRs or may be combined with other
GDRs into one GDR, evidencing the same aggregate number of GDSs and registered
in the name of the same Holder as the GDR or GDRs surrendered. At the request of
a Holder, the Depositary shall, for the purpose of substituting a certificated
GDR with a Direct Registration GDR, or vice versa, execute and deliver a
certificated GDR or a Direct Registration GDR, as the case may be, for any
authorized number of GDSs requested, evidencing the same aggregate number of
GDSs as those evidenced by the certificated GDR or Direct Registration GDR, as
the case may be, substituted.
(4) Conversion of Shares; Mandatory Conversion. (i) The GDSs are not
convertible into Common Stock or any other securities or property of the
Company. Nevertheless, as a matter of convenience, the Depositary has agreed
under the terms of the Deposit Agreement to accept the surrender of GDRs and the
withdrawal of Shares represented thereby, in each case in the manner set forth
in the Deposit Agreement, for the purpose of facilitating conversions of the
Shares.
For the purpose of conversion, a GDR must be surrendered at the
Principal New York Office of the Depositary, (i) together with (A) payment of
all fees (including the fees of the Depositary set forth on Exhibit B to the
Deposit Agreement), taxes (including stamp, transfer and capital gains taxes)
and governmental or other charges payable (including, if payable pursuant to the
terms and conditions of the Shares, an amount equal to the dividend payable on
the dividend payment date immediately following the date on which the Shares to
be converted are surrendered to the Conversion Agent) in connection with the
surrender and cancellation of the GDRs and GDSs, the conversion of Shares and
the issuance, registration and delivery and, if applicable, the deposit of the
Common Stock in accordance with the terms and conditions of the depositary
arrangements of the Depositary, dated as of October 19, 1994, relating to the
Common Stock (the "Common Stock Deposit Agreement") other than any capital or
stamp duties or transfer taxes payable by the Company in accordance with the
terms and conditions of the Shares or the Common Stock and (B) a duly completed
and executed Notice of Conversion in the form attached as Exhibit E to the
Deposit Agreement (the "Notice of Conversion") and such other documentation as
the Depositary may require and (ii) in any case, subject to the terms and
conditions of the Shares, the Common Stock and of the Deposit Agreement. The
surrender, delivery and payment of the foregoing instruments and amounts shall
be irrevocable absent notice to the contrary from the Depositary.
Upon receipt of documents and payments described above, the Depositary
will cancel each GDR so surrendered, withdraw the Shares represented thereby
from deposit under the Deposit Agreement and direct the Custodian to deliver, on
behalf of and at the risk and expense of the Holder surrendering the GDR, to the
Conversion Agent a certificate or certificates and other proper documents of
title, if any, for the Shares so withdrawn along with the Notice of Conversion
and any amounts payable to the Company or the Conversion Agent in connection
with the conversion of such Shares. The Depositary's directions to the Custodian
will be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission. Such Holder will be entitled to delivery
of Common Stock (together with any securities, cash or other property)
deliverable upon conversion of the Shares in accordance with the terms and
conditions of such Shares and the Depositary shall have no obligations in
respect of such delivery; provided that, if requested by the
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Holder, the Depositary will, subject to the terms and conditions of the Deposit
Agreement, the Shares, the Common Stock and the Common Stock Deposit Agreement,
(a) cause the Common Stock delivered upon conversion of the Shares, to be
deposited in accordance with the Common Stock Deposit Agreement and a depositary
receipt issued thereunder in the name of or for the benefit of such Holder or
(b) use reasonable efforts to sell or cause to be sold the Common Stock
delivered upon conversion of the Shares on such Holder's behalf over the
Philippine Stock Exchange and to remit the proceeds thereof (less the fees and
expenses provided herein and any brokerage fee or selling expenses incurred in
connection with such sale) to such Holder or in accordance with such Holder's
instructions, provided that no such request may be made by any such Holder to
the Depositary to sell or to cause to be sold such Common Stock in amounts less
than the minimum trading (board) lot prescribed by the Philippine Stock
Exchange.
A GDR surrendered for such purposes may be required by the Depositary
to be properly endorsed or accompanied by properly executed instruments of
transfer. The person requesting withdrawal of Shares and delivery of Common
Stock shall deliver to the Depositary (for onward transmission to the Conversion
Agent) written instructions requesting that the Common Stock deliverable upon
conversion of the Shares be delivered (subject to applicable clearing procedures
and provisions of the Amended Articles of Incorporation of the Company) to or
upon the written order of a person or persons designated in such order.
The Depositary will not accept surrender of GDRs or written
instructions for the purpose of withdrawal and conversion of less than one
Share. In addition, the Depositary will only honor requests for withdrawal and
conversion of whole numbers of Shares. In the case of surrender of a GDR
evidencing a number of GDSs representing other than a whole number of Shares,
the Depositary will withdraw and deliver for conversion the appropriate whole
number of Shares as provided in the Deposit Agreement and as described herein,
and shall execute and deliver to the person surrendering such GDR a new GDR
evidencing GDSs representing any remaining fractional Share.
No Share will be withdrawn or delivered as provided in the Deposit
Agreement and as described herein unless such written order is accompanied by a
fully completed and signed Notice of Conversion.
(ii) Upon receipt by the Depositary of notice from the Company of the
date (the "Mandatory Conversion Date") on which the mandatory conversion of any
or all of the Shares constituting Deposited Securities shall occur, the
Depositary will promptly fix a record date for cancellation of the GDSs
representing the Shares to be so converted and notify the Holders of record on
such date (i) of the Mandatory Conversion Date, (ii) the number of Shares then
constituting Deposited Securities called for conversion by the Company on such
date and (iii) that, upon conversion by the Company of any Shares constituting
Deposited Securities, the GDSs representing such Shares shall be cancelled in
the manner set forth in the Deposit Agreement and as described herein. Neither
failure to deliver any such notice to one or more Holders nor any defect in any
notice will affect the sufficiency of the proceedings for cancellation of such
GDSs. In the event that fewer than all the outstanding GDSs are to be so
cancelled, the GDSs to be cancelled will be selected by lot or in any other
substantially equivalent manner determined by the Depositary.
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If any Shares constituting Deposited Securities are converted by the
Company on the Mandatory Conversion Date, the Depositary will, on such date,
cancel the number of GDSs representing the number of Shares so converted.
The GDSs cancelled by the Depositary will be deemed no longer to be
outstanding and all rights of the Holders of the GDRs evidencing such GDSs
(except the right to the delivery by the Depositary to the Conversion Agent of
certain documents and payments as provided in the Deposit Agreement and
described herein) will, in respect of the GDSs so cancelled, cease and
terminate.
In respect of any cancelled GDS, upon the delivery to the Depositary of
(x) a duly executed and completed Notice of Conversion with respect to the
Shares formerly represented by such GDSs, (y) evidence satisfactory to the
Depositary that the person executing such Notice of Conversion is or is acting
on behalf of the beneficial owner of GDRs evidencing such cancelled GDSs and (z)
the fees, taxes and governmental and other charges described in Section 2.06 (a)
of the Deposit Agreement, the Depositary will, subject to the terms and
conditions of the Deposit Agreement, direct the Custodian to deliver, on behalf
of and at the risk and expense of such beneficial owner, to the Conversion Agent
without unreasonable delay, a certificate or certificates and other proper
documents of title, if any, for the Shares formerly represented by such GDSs
along with the Notice of Conversion and any amounts payable to the Company or
the Conversion Agent in connection with the conversion of such Shares. Until
such time as the Depositary receives the foregoing documents and payments it
will have no obligation whatsoever to any Holder of GDRs representing cancelled
GDSs.
Pursuant to the terms and conditions of the Shares, until such time as
the Conversion Agent has received a Notice of Conversion and such other
documentation as may be required and share certificates in respect of Shares
subject to mandatory conversion by the Company, the Nominee as holder of the
shares of Common Stock delivered upon such mandatory conversion will not be
entitled to notice of, or to attend or vote at, any general or special meeting
of the Company or to receive the dividends to which such shares of Common Stock
are entitled.
(5) Limitations on Execution and Delivery, Transfer, Etc. of GDRs;
Suspension of Delivery, Transfer, Etc. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination or surrender of
any GDR for the purpose of withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the Holder, the
presenter of a GDR or the depositor of Shares, of a sum sufficient to reimburse
it for any taxes (including any transfer, capital gains or stamp taxes) or
governmental or other charges and any stock transfer, custody or registration
fee with respect thereto and payment of any applicable fees (which are
summarized in paragraph (9) of this GDR) provided for in the Deposit Agreement,
including Exhibit B thereto, (ii) production of proof satisfactory to it as to
the identity and genuineness of any signature, including but not limited to a
signature guarantee in accordance with industry practice, and (iii) compliance
with such other restrictions, if any, as the Depositary and the Company may
establish consistent with the provisions of the Deposit Agreement.
The delivery of GDRs against deposits of Shares generally or of
particular Shares may be suspended or withheld, or the registration of transfer
of GDRs in particular instances may be refused,
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or the registration of transfer generally may be suspended, or the surrender of
outstanding GDRs for the purpose of withdrawal of Deposited Securities may be
suspended, during any period when the transfer books of the Depositary or the
Company (or the appointed agent of the Company for the transfer and registration
of Shares) are closed, or if any such action is deemed necessary or advisable by
the Company or the Depositary at any time or from time to time.
Subject to the further terms and provisions of Section 2.07 of the
Deposit Agreement (which are summarized in this paragraph (5)), JPMorgan Chase
Bank and its agents, on their own behalf, may own and deal in any class of
securities of the Company and its affiliates and in GDRs. The Depositary may
issue GDRs for evidence of rights to receive Shares from 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 hereof. Neither the Depositary nor the
Custodian shall lend Deposited Securities or GDRs; provided, however, that the
Depositary may issue GDRs prior to the receipt of Shares pursuant to Section
2.02 of the Deposit Agreement (a "Pre-Release Transaction") and deliver Shares
upon the receipt and cancellation of GDRs which have been Pre-Released, whether
or not such cancellation is prior to the termination of such PreRelease
Transaction or the Depositary knows that such GDR has been Pre-Released. The
Depositary may receive GDRs in lieu of Shares in satisfaction of a Pre-Release
Transaction. Each such Pre-Release transaction will be (a) subject to (x) a
written representation from the person to whom GDRs are to be delivered, that
such person, or its customer, owns the Shares to be remitted, (y) an
unconditional guarantee by such person to deliver to the Custodian the number of
Shares that are the subject of the Pre-Release Transaction and (z) any
additional restrictions or requirements that the Depositary deems appropriate,
(b) subject to a written representation to the Applicant that it will hold such
Shares in trust for the Depositary until their delivery to the Depositary or
Custodian, reflect on its records the Depositary as owner of such Shares and
deliver such Shares upon the Depositary's request, (c) at all times fully
collateralized (marked to market daily) with cash, United States government
securities or such other collateral of comparable safety and liquidity, (d)
terminable by the Depositary on not more than five (5) business days notice, and
(e) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary intends that the number of GDRs issued by it
pursuant to a Pre-Release Transaction and outstanding at any time generally will
not exceed thirty percent (30%) of the GDRs issued by the Depositary and with
respect to which Shares are on deposit with the Depositary or Custodian;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary will also
set limits with respect to the number of GDRs and Shares involved in
transactions to be effected hereunder 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 connection with the foregoing. Collateral provided pursuant to (b)
above, but not the earnings thereon, shall be held for the benefit of the
Holders only.
Without limitation of the foregoing, the Depositary will not knowingly
accept for deposit under this Deposit Agreement any Shares required to be
registered pursuant to the provisions of the Securities Act (including, but not
limited to, any "restricted securities" within the meaning of Rule
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144 under the Securities Act), unless a registration statement under the
Securities Act is in effect as to such Shares. The Depositary will use
reasonable efforts to comply with written instructions of the Company not to
accept for deposit under the Deposit Agreement any Shares identified in such
instructions at such times and under such circumstances as may reasonably be
specified in such instructions in order to facilitate the Company's compliance
with the securities laws of the United States.
Any person depositing Shares or any Holder may be required from time to
time to file with the Depositary or the Custodian such proof of citizenship,
residence, exchange control approval, payment of all applicable taxes or other
governmental charges, compliance with all applicable laws and regulations and
the terms of the Deposit Agreement, or legal or beneficial ownership and the
nature of such interest, to provide information relating to the registration on
the books of the Company (or the appointed agent of the Company for the transfer
and registration of Shares) of the Shares presented for deposit or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may deem necessary or proper to
enable the Depositary to perform its obligations under the Deposit Agreement or
to enable the Company or the Depositary to perform their respective obligations
under the Company Agreement (as hereinafter defined). The Depositary may
withhold the execution or delivery or registration of transfer of all or part of
any GDR or the distribution or sale of any dividend or other distribution of
rights or of the proceeds thereof or the withdrawal of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties are made. The Depositary shall take such
additional actions and provide such additional information as the Depositary
shall from time to time agree with the Company.
(6) Liability of Holders for Taxes and Other Charges. If any tax or
governmental or other charge shall become payable with respect to this GDR, to
any Deposited Securities represented by the GDSs evidenced hereby or to any
shares of Common Stock into which the Shares are convertible, such tax or
governmental or other charge (other than any capital or stamp duties or transfer
taxes payable by the Company in accordance with the terms and conditions of the
Shares or the Common Stock) shall be payable by the Holder hereof to the
Depositary. The Depositary may refuse, and the Company shall be under no
obligation, to effect any registration of transfer of all or any part of this
GDR or any deposit or withdrawal (including any withdrawal in connection with a
conversion of Shares) of Deposited Securities represented by the GDSs evidenced
hereby until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder hereof any part or all
of the Deposited Securities represented by the GDSs evidenced hereby, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or governmental or other charge, the Holder hereof remaining
liable for any deficiency.
(7) Warranties by Depositor. Each person depositing Shares under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Shares and each certificate therefor are validly issued and outstanding, fully
paid and nonassessable and that the person making such deposit is duly
authorized to do so. Such representations and warranties shall survive the
deposit of Shares and issuance of GDRs in respect thereof .
(8) Compliance with U.S. Securities Laws. Notwithstanding anything in
the Deposit
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Agreement to the contrary, the Company and the Depositary have each agreed that
it will not exercise any rights it has under the Deposit Agreement to prevent
the withdrawal or delivery of Deposited Securities in a manner which would
violate the United States securities laws, including, but not limited to,
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.
(9) Charges of Depositary. Except for GDSs issued in respect of the Initial
Deposit, the Depositary will charge the party receiving a GDR against deposit of
Shares or other depositary receipts, $0.05 per GDS. The Depositary will charge
the party surrendering a GDR in connection with the withdrawal of Deposited
Securities (including any withdrawal for the purpose of conversion of Shares),
$0.05 per GDS. The Depositary will charge the party for whom the sale or
exercise of rights, is made, $0.02 for each GDS per distribution. Holders will
pay through deduction or otherwise, in addition to the fees and charges
summarized above in this paragraph (9) and set forth in Exhibit B to the Deposit
Agreement, (i) taxes and other governmental charges (including, but not limited
to any transfer, capital gains and stamp tax) other than any capital or stamp
duties or transfer taxes payable by the Company in accordance with the terms and
conditions of the Shares and the Common Stock, (ii) such registration, transfer,
custody or other fees as may from time to time be in effect for the registration
of transfers of Shares generally on the share register of the Company or its
appointed agent for the registration of transfer and accordingly applicable to
transfers of Shares to or from the name of the Nominee on the making of deposits
pursuant to Section 2.02 of the Deposit Agreement or withdrawals pursuant to
Section 2.05 of the Deposit Agreement, or Section 2.06 of the Deposit Agreement,
(iii) such cable, telex, facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of persons
depositing Shares or Holders and (iv) such reasonable expenses and charges as
are incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.06 of the Deposit Agreement (which is summarized in paragraph (19)
hereof) or in connection with other distributions to holders of Shares pursuant
to Section 4.02, 4.03, 4.04 or 4.05 of the Deposit Agreement (which are
summarized in paragraphs (15), (16), (17) and (18), respectively, hereof).
Any other charges and expenses of the Depositary under the Deposit
Agreement and the Registrar, if any, will be paid by the Company after
consultation and agreement and in accordance with agreements in writing entered
into between the Depositary and the Company as to the nature and amount of such
charges and expenses. The charges and expenses of the Custodian, the Nominee or
any other agent of the Depositary are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided in Section 5.05 of the Deposit Agreement (and summarized in
this paragraph (9)) shall survive the termination of this Deposit Agreement and,
as to any Depositary, the resignation of such Depositary pursuant to Section
5.04 of the Deposit Agreement.
(10) Title to GDRs. Subject to any limitations set forth herein or in the
Deposit Agreement, it is a condition of this GDR, and every successive Holder
hereof by accepting or holding the same consents and agrees, that when properly
endorsed or accompanied by proper instruments of transfer (including signature
guarantees in accordance with standard industry practice), title to this GDR
(and to each GDS evidenced hereby) is transferable by delivery with the
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same effect as in the case of a negotiable instrument in accordance with the
laws of the State of New York; provided, however, that the Depositary and the
Company, notwithstanding any notice to the contrary, may deem and treat the
Holder of this GDR as the absolute owner hereof for any purpose, including,
without limitation, the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and neither the Depositary nor the Company shall have
any obligation or be subject to any liability under the Deposit Agreement to any
holder hereof unless such holder is the Holder hereof.
(11) Validity of GDR. This GDR shall not be entitled to any benefits under
the Deposit Agreement or be valid or obligatory for any purpose unless this GDR
has been executed by the Depositary by the manual signature of a duly authorized
officer of the Depositary or, if a Registrar shall have been appointed, such
signature may be a facsimile if this GDR is counter-signed by the manual
signature of a duly authorized officer of the Registrar and dated by such
officer.
(12) Disclosure of Interests. The Company or the Depositary may from time
to time request Holders or former Holders to provide information as to the
capacity in which they hold or held this GDR and the nature of such interest and
various other matters. Each such Holder agrees to provide any such information
reasonably requested by the Company or the Depositary pursuant to the Deposit
Agreement whether or not still a Holder at the time of such request.
(13) Ownership Restrictions. The Company may restrict transfers of the
Shares if such transfer might result in ownership of Shares exceeding the limits
under any applicable law or the Company's Amended Articles of Incorporation. The
Philippine Constitution requires that at least 60% of the capital of a
corporation operating a public utility in the Philippines be owned by Philippine
citizens. The Depositary will, if and as directed by the Company, take action
with respect to the ownership interest of any Holder in excess of any legal or
contractual limitations on the legal or beneficial ownership of Shares or GDSs,
including but not limited to a mandatory sale or disposition on behalf of a
Holder of the Shares represented by the GDSs held by such Holder in excess of
such limitation, if and to the extent such disposition is permitted by
applicable law.
(14) Available Information. The Company is subject the periodic reporting
requirements of the Securities Exchange Act of 1934 and, accordingly, files
certain reports with the Commission. These public reports can be inspected by
Holders and copies at the public reference facilities maintained by the
Commission located at the date of this Deposit Agreement at Judiciary Plaza, 000
Xxxxx Xxxxxx, X.X. Xxxxxxxxxx, X.X. 00000.
Dated:
JPMORGAN CHASE BANK, as depositary
By:
------------------------------
The address of the Principal New York Office of the Depositary is 1
Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-10
(FORM OF REVERSE OF
GLOBAL DEPOSITARY RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(15) Cash Distributions in Respect of Deposited Securities; Withholding.
Whenever the Custodian or the Depositary receives any cash dividend or other
cash distribution by the Company in respect of any Deposited Securities, the
Depositary will, subject to the provisions of Section 4.06 of the Deposit
Agreement (which are summarized in paragraph (19) below) convert or cause any
portion of such dividend or distribution which is not in dollars to be converted
into dollars and shall promptly distribute such amount to the Holders entitled
hereto in proportion to the number of GDSs representing such Deposited
Securities held by them respectively, after deduction or upon payment of the
fees and expenses of the Depositary or the Custodian (and without liability for
interest); provided, however, that in the event that the Company, the Custodian
or the Depositary shall be 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 or other governmental charges, the amount distributed
to Holders in respect of GDSs representing such Deposited Securities shall be
reduced accordingly. The Depositary will distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent,
and any balance not so distributable will be held by the Depositary (without
liability for interest thereon) and will be added to and become part of the next
sum received by the Depositary for distribution to Holders then outstanding. The
Company has agreed with the Depositary that the Company or its agent, or the
Depositary or its agent, as appropriate, will remit to the appropriate
governmental authority or agency all amounts withheld and owing to such
authority or agency. The Depositary will forward to the Company or its agent
such information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
authorities or agencies or, at the request and expense of the Company, the
Depositary or its agent may file such reports if deemed lawful and reasonably
feasible by the Depositary.
(16) Distributions in Shares. If any distribution in respect of any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Depositary may, after consultation with the Company, distribute to the
Holders entitled thereto, in proportion to the number of GDSs representing such
Deposited Securities held by them respectively, additional GDRs for an aggregate
number of GDSs representing the number of Shares received as such dividend or
free distribution, in either case, after deduction or upon payment of the fees
and expenses of the Depositary; provided, however, that if for any reason
(including any requirement that the Company or the Depositary withhold, or make
an advance payment of, an amount on account of taxes or other governmental
charges or that such Shares must be registered under the Securities Act in order
to be distributed to Holders) the Depositary reasonably deems such distribution
not to be practical or feasible, the Depositary may, after consultation with the
Company, (i) to the extent permitted by applicable law, adopt such method as it
may reasonably deem equitable and practicable for the purpose of obtaining such
dividend or effecting such distribution, including the sale (at public or
private sale) of the Shares thus received, or any part thereof, and the net
proceeds of any such sale after payment of and reimbursement of advances to pay
any taxes or governmental charges shall be distributed by the
A-11
Depositary to the Holders entitled thereto as in the case of a distribution
received in cash or (ii) if the Depositary reasonably determines that no such
method of distribution can be effected in a practicable or equitable manner, the
Depositary may refrain from effecting such distribution altogether until such
time as it reasonably determines that a practicable or equitable distribution
can be effected. In lieu of issuing GDRs or adjusting the Depositary's records
for fractional GDSs in any such case, the Depositary will sell the number of
Shares represented by the aggregate of such fractions and distribute the net
proceeds in dollars, all in the manner and subject to the conditions set forth
in Section 4.02 of the Deposit Agreement (which are summarized in paragraph 15
above). If additional GDRs are not so distributed (except pursuant to the
preceding sentence), or such change in the records of the Depositary is not
made, each GDS will thenceforth also represent its proportionate interest in the
additional Shares distributed upon the Deposited Securities represented thereby.
(17) Distribution of Rights. In the event that the Company shall offer or
cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other nature, the
Depositary, after consultation with the Company, has discretion as to the
procedure to be followed in making such rights available to the Holders entitled
thereto, subject to certain conditions set forth in Section 5.09 of the Deposit
Agreement (which are summarized in paragraph (28) below), or in disposing of
such rights on behalf of such Holders and making the net proceeds available in
cash to such Holders or, if by the terms of such rights offering or by reason of
applicable law, the Depositary may neither make such rights available to such
Holders nor dispose of such rights and make the net proceeds available to such
Holders, then the Depositary will allow the rights to lapse; provided, however,
that the Depositary will, if requested by the Company, take action as follows:
(i) if at the time of the offering of any rights the
Depositary determines that it is lawful and feasible to make such
rights available to all or certain Holders by means of warrants or
otherwise, the Depositary will, after deduction or upon payment of
the fees and expenses of the Depositary, distribute warrants or
other instruments in proportion to the number of GDSs representing
such Deposited Securities held by them respectively, or by means
of such other method as it may deem feasible in order to
facilitate the exercise, sale or transfer of rights by such
Holders or the sale or resale of securities obtainable upon
exercise of such rights by such Holders; or
(ii) if at the time of the offering of any rights the
Depositary determines that it is not lawful or not feasible to
make such rights available to certain Holders by means of warrants
or otherwise, or if the rights represented by such warrants or
such other instruments are not exercised and appear to be about to
lapse, the Depositary will use its reasonable efforts to sell such
rights or such warrants or other instruments, if a market therefor
is available, at public or private sales, at such place or places
and upon such terms as it may deem proper and, after deduction or
upon payment of the fees and expenses of the Depositary and any
applicable taxes, allocate the net proceeds of such sales for the
account of the Holders otherwise entitled to such rights, warrants
or other instruments upon an
A-12
averaged or other practicable basis without regard to any
distinctions among such Holders because of exchange restrictions
or the date of delivery of any GDR or GDRs, or otherwise.
If registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate is required in order
for the Company to offer such rights to Holders and to sell to them the
securities to which such rights relate, the Depositary will not offer such
rights to Holders unless and until a registration statement is in effect, or
unless the offering and sale of such rights or securities to such Holders are
exempt from registration under the provisions of such law and, if requested by
the Depositary, the Company furnishes to the Depositary an opinion of counsel in
the United States for the Company reasonably satisfactory to the Depositary to
such effect. The Company shall have no obligation to register such rights or
such securities under the Securities Act.
(18) Distributions Other Than Cash, Shares or Rights. Whenever the
Custodian or the Depositary shall receive any distribution other than cash,
Shares or rights upon any Deposited Securities, the Depositary will cause the
securities or property so received to be distributed to the Holders entitled
thereto, after deduction or upon payment of the fees and expenses of the
Depositary, in proportion to the number of GDSs representing such Deposited
Securities held by them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution provided, however,
that if in the opinion of the Depositary it cannot cause such securities or
property to be distributed or such distribution cannot be made proportionately
among the Holders entitled thereto, or if for any other reason (including any
requirement that the Company, the Custodian or the Depositary withhold an amount
on account of taxes or other governmental charges or that such securities must
be registered under the Securities Act in order to be distributed to Holders)
the Depositary deems such distribution not to be feasible, the Depositary may,
after consultation with the Company, adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including the
sale (at public or private sale) of the securities or property thus received, or
any part thereof, and the net proceeds of any such sale will be distributed by
the Depositary to the Holders entitled thereto as in the case of a distribution
received in cash; provided that any unsold balance of such securities or
property will be distributed by the Depositary to the Holders entitled thereto,
if such distribution is feasible without withholding for or on account of any
taxes or other governmental charges and without registration under the
Securities Act, in accordance with such equitable and practicable method as the
Depositary adopts.
(19) Conversion of Foreign Currency. Whenever the Custodian receives
currency other than dollars (in this paragraph referred to as "foreign
currency"), by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into dollars which can, at the time of
receipt thereof, be transferred to the United States and distributed to the
Holders entitled thereto, the Depositary will promptly convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into dollars, and such dollars (less any reasonable and customary
expenses incurred by the Depositary in the conversion of the foreign currency)
will be distributed to the Holders entitled
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thereto or, if the Depositary shall have distributed any warrants or other
instruments which entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution will be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary may file such application for
approval or license, if any, as it may deem desirable.
If at any time the Depositary determines that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into dollars distributable to Holders entitled thereto, or if any approval
or license of any government or authority or agency thereof which is required
for such conversion is denied or in the opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency (without liability for interest) for the respective
accounts of, the Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some Holders entitled thereto, the Depositary
may in its discretion make such conversion and distribution in dollars to the
extent permissible to the Holders for whom such conversion and distribution is
practicable and may, subject to any applicable currency and exchange
regulations, distribute the balance of the foreign currency received by the
Depositary to, or hold such balance for the account of, the Holders for whom
such conversion and distribution is not practicable.
(20) Fixing of Record Date. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to the Deposited
Securities, or whenever the Depositary receives notice of any meeting of holders
of Shares or other Deposited Securities or any other meeting of holders of the
Company's securities at which holders of Shares or other Deposited Securities
are entitled to vote, or whenever, for any reason, the Depositary causes a
change in the number of Shares that are represented by each GDS, or whenever the
Depositary finds it necessary or convenient in respect of any matter (including
in connection with a mandatory conversion of Shares by the Company), the
Depositary will fix a record date after consultation with the Company (which
shall be as near as practicable to the corresponding record date for such
distribution or meeting set by the Company) for the determination of the Holders
who shall be entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights, if any, at any such meeting or in respect of such changed number
of Shares represented by a GDS or in respect of such other matter. Except in the
case of a mandatory conversion by the Company of less than all of the Shares
deposited hereunder (which shall be governed by Section 2.06 of the Deposit
Agreement, the terms of which are described in paragraph (4) above) and subject
to the provisions of Sections 4.02 through 4.06 of the Deposit Agreement (which
are summarized in paragraphs (15) through (19),
A-14
respectively, above) and to the other terms and conditions of the Deposit
Agreement, the Holders on such record date will be entitled to receive the
amount distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof and to exercise
the rights of Holders under the Deposit Agreement with respect to such changed
number of Shares represented by each GDS, in proportion to the number of GDSs
held by them respectively, to give such voting instructions, to receive such
notice or solicitation or to act in respect of any matter.
(21) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting of holders of Shares or other Deposited Securities or
any other meeting of holders of the Company's securities at which holders of
Shares or other Deposited Securities are entitled to vote, the Depositary will
fix a record date for determining the Holders entitled to give instructions for
the exercise of voting rights as provided in Section 4.07 of the Deposit
Agreement (and summarized in paragraph (20) above) and will mail or cause to be
mailed to the Holders of record a notice which will contain: (a) such
information as is contained in such notice of meeting and (b) a statement that
the Holders of record at the close of business on a specified record date will
be entitled, subject to any applicable provisions of the law of the Philippines
and of the Amended Articles of Incorporation and the By-Laws of the Company, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the number of Shares or other Deposited Securities represented by
their respective GDSs evidenced by their respective GDRs. Upon the written
request of a Holder on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary will endeavor
insofar as is practicable to vote or cause to be voted the amount of Deposited
Securities represented by such GDSs evidenced by such GDR in accordance with the
instructions set forth in such request.
The Depositary may not itself exercise any voting discretion over any
Shares. If the Depositary does not receive instructions from a Holder on or
before the date established by the Depositary for such purpose, such Holder
shall be deemed, and the Depositary shall deem such Holder, to have instructed
the Depositary to give a discretionary proxy to a person designated by the
Company for the purpose of exercising the voting rights, if any, pertaining to
the Shares represented by GDSs evidenced by such Holder's GDRs, provided that no
such discretionary proxy shall be given with respect to any matter as to which
the Company informs the Depositary that (i) the Company does not wish such proxy
given, (ii) substantial opposition exists or (iii) the rights of holders of
Shares will be materially and adversely affected.
Holders do not have, and will not have the right to instruct the
Depositary as to the exercise of, any dissenter's rights provided to holders of
Shares under Philippine law.
(22) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, consolidation or any other reclassification of Deposited Securities
(other than as a result of any conversion of Shares into Common Stock in
accordance with the terms of the Shares), or upon any recapitalization,
reorganization, merger or consolidation of the Company or sale of assets
affecting the Company or to which it is a party, any securities that shall be
received by the Depositary or the Custodian in exchange for or in conversion of
or in respect of Deposited Securities will be treated as new Deposited
Securities, and the GDRs will, subject to the terms of the Deposit Agreement and
A-15
applicable laws (including any registration requirements of the Securities Act),
thenceforth represent the right to receive the new Deposited Securities so
received in exchange or conversion, unless new or additional GDRs are delivered
pursuant to the following sentence. In any such case the Depositary may, and
will at the Company's request, subject to the terms of the Deposit Agreement,
execute and deliver additional GDRs, as in the case of a stock dividend on the
Shares, or call for the surrender of outstanding GDRs to be exchanged for new
GDRs specifically describing such new Deposited Securities.
Notwithstanding the foregoing, in the event that the Depositary
determines that any security or property so received may not be lawfully or
practicably distributed to all or certain Holders, the Depositary may and will,
if the Company requests, sell such securities or property 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 (after payment of the expenses thereof
and any taxes or governmental charges) for the account of the Holders otherwise
entitled to such securities or property upon an averaged or other practicable
basis without regard to any distinctions among such Holders and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section 4.02 of the Deposit Agreement
(which is summarized in paragraph (15) above).
Promptly upon receipt of notice from the Company of the occurrence of
any such change, conversion or exchange covered by Section 4.09 of the Deposit
Agreement (as described in this paragraph (22)) in respect of the Deposited
Securities, the Depositary will give notice thereof in writing, at the Company's
expense, to all Holders.
(23) Transmittal by the Depositary of Company Notices, Reports and
Communications; Inspection of Transfer Books. The Depositary will make available
for inspection during business hours by Holders at its Principal New York Office
and at the principal office of the Custodian copies of (i) the Deposit Agreement
and any related documents, (ii) the Preferred Stock Agreement dated the date of
the Deposit Agreement between the Company and the Depositary and relating
thereto (the "Company Agreement"), (iii) the Company's Amended Articles of
Incorporation and By-Laws and the Resolutions of the Board of Directors relating
to the Shares and (iv) any notices, reports or communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary or the Custodian or the nominee of either, as the
holder of the Deposited Securities, and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary will also
send to Holders, at the Company's expense, copies of such notices, reports and
communications when furnished by the Company to the Depositary pursuant to the
Deposit Agreement. The Depositary will keep books for the registration of GDRs
and their transfer which at all reasonable times will be open for inspection by
the Company and Holders of GDRs, provided that such inspection shall not be for
the purpose of communicating with Holders of GDRs in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the GDRs.
(24) Withholding. Notwithstanding any other provision of the Deposit
Agreement, in the event that the Depositary determines that any distribution of
property (including Shares, rights to subscribe therefor and other securities)
is subject to any tax or governmental charges which the
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Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares, rights to subscribe therefor and
other securities) in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes or governmental charges, including
by public or private sale, and the Depositary will distribute the net proceeds
of any such sale or the balance of any such property after deduction of such
taxes or governmental charges to the Holders entitled thereto in proportion to
the number of GDSs held by them respectively and the Depositary will, if
feasible without withholding for or on account of taxes or other governmental
charges, and otherwise in compliance with applicable law, distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement. To the extent that the Depositary is obligated to withhold as
described in the previous sentence, the Depositary will remit to the appropriate
governmental authority or agency all amounts withheld and owing to such
authority or agency and will file such corresponding reports as may be required.
The Company has agreed with the Depositary that, before making any
distribution or other payment on any Deposited Securities, the Company will make
such deductions (if any) which, by the laws or regulations of the Philippines,
the Company is required to make in respect of any income, capital gains or other
taxes and that the Company may also deduct the amount of any tax or governmental
charges payable by the Company or for which the Company might be made liable in
respect of such distribution or other payment or any document signed in
connection therewith.
(25) Obligations of the Depositary the Custodian and the Company. The
Company assumes no obligation nor is it subject to any liability under the
Deposit Agreement to Holders or other persons, except that it has agreed with
the Depositary to act in good faith and use reasonable judgment in the
performance of its obligations set forth in the Company Agreement. The
Depositary assumes no obligation nor is it subject to any liability under the
Deposit Agreement to Holders or other persons (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that it has agreed to act in good faith and use reasonable judgment in
the performance of its obligations set forth in the Deposit Agreement. The
Depositary has undertaken in the Deposit Agreement to perform such duties and
only such duties as are specifically set forth therein, and no implied covenants
or obligations shall be read into the Deposit Agreement against the Depositary
or the Company. In no event shall the Depositary or any of its agents be liable
for any indirect, special, punitive or consequential damages.
Neither the Depositary nor the Company are under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the GDRs, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it in its
sole discretion against all expense and liability be furnished as often as may
be required, and no Custodian is under any obligation whatsoever with respect to
such proceedings, the Custodian being responsible solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action
or inaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder or
any other person believed by it in good faith to be competent to give such
advice or information. Each of the Depositary, its agents and the Company and
its
A-17
agents may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine and to have
been signed or presented by the proper party or parties. Subject to the
provisions of Section 5.02 of the Deposit Agreement (which are summarized in
this paragraph (25)), the Depositary is not responsible for any failure to carry
out any instructions to vote any of the Deposited Securities, for the manner in
which any such vote is cast or for the effect of any such vote.
It is intended that neither the Depositary nor any agent of the
Depositary shall be deemed to be an "issuer" of the securities under the federal
securities laws or applicable state securities laws of the United States or any
other jurisdiction, it being expressly understood and agreed that the Depositary
and its agents are acting only in a ministerial capacity as Depositary for the
Shares.
(26) Prevention or Delay in Performance by the Depositary or the Company.
Neither the Depositary nor the Company will incur any liability to any Holder or
other person if by reason of any present or future law, regulation, decree,
order or other action of the United States, the Philippines or any other country
or jurisdiction, or of any other governmental authority, or by reason of any act
of God, war or other circumstances beyond its control or, in the case of the
Depositary, by reason of any provision, present or future, of the Amended
Articles of Incorporation and By-laws of the Company or any Deposited
Securities, the Depositary or the Company is prevented, delayed or forbidden
from doing or performing any act or thing which by the terms of the Deposit
Agreement (in the case of the Depositary) or the Company Agreement it is
provided shall be done or performed; nor will the Depositary or the Company
incur any liability to any Holder or other person by reason of any
nonperformance or delay, caused as aforesaid, in performance of any act or thing
that by the terms of the Deposit Agreement it is provided shall or may be done
or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.02, 4.03 or 4.05 of the Deposit Agreement
(which are summarized in paragraphs (15), (16) and (18), respectively, above) or
an offering or distribution pursuant to Section 4.04 of the Deposit Agreement
(which is summarized in paragraph (17) above), or because of applicable law,
such distribution or offering may not be made available to Holders, and the
Depositary may not dispose of such distribution or offering on behalf of such
Holders and make the net proceeds available to such Holders, then the Depositary
may make no such distribution or offering, and may allow any rights, if
applicable, to lapse.
(27) Resignation of the Depositary Appointment of Successor Depositary the
Custodian. The Depositary may at any time resign as Depositary under the Deposit
Agreement by 30 days' written notice of its election so to do to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 30 days prior written
notice of such removal.
In case at any time the Depositary acting under the Deposit Agreement
resigns or is removed, the Company has agreed to use its best efforts to appoint
a successor depositary, which shall be a bank or trust company having an office
in the Borough of Manhattan, The City of New York. Any corporation into or with
which the Depositary may be merged or consolidated will be
A-18
the successor of the Depositary without the execution or filing of any document
or any further act.
The Depositary, after consultation with the Company, will from time to
time appoint one or more agents to act for it as Custodian under the Deposit
Agreement. The Depositary has initially appointed Citibank, N.A., Manila, as
custodian and agent of the Depositary for the purpose of the Deposit Agreement.
The Custodian in acting under the Deposit Agreement will be subject at all times
and in all respects to the direction of the Depositary and will be responsible
solely to it. The Custodian may resign and be discharged from its duties under
the Deposit Agreement by 30 days' prior notice of its election to do so
delivered to the Depositary; such resignation to become effective upon
appointment of a successor Custodian and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may discharge any Custodian at
any time upon notice to the Custodian being discharged and appoint a substitute
or an additional custodian, who will thereafter be the Custodian under the
Deposit Agreement.
(28) Issuance of Additional Shares, Etc. In the event of any issuance of
additional Shares or of other securities (including rights and convertible or
exchangeable securities) as a dividend or distribution with respect to the
Shares or other Deposited Securities, or future issuances to Holders for cash of
additional Shares or such other securities, the Depositary will not distribute
any such additional Shares or other securities to the Holders unless the Company
shall have furnished to the Depositary a written opinion from counsel for the
Company in the United States, which counsel shall be reasonably satisfactory to
the Depositary, to the effect that such dividend or distribution will not
violate the Securities Act.
The Company has agreed with the Depositary that any future issuances of
(1) additional Shares, (2) rights, preferences or privileges to subscribe for
Shares, (3) securities convertible into or exchangeable for Shares, or (4)
rights, preferences or privileges to subscribe for securities convertible into
or exchangeable for Shares (in each case other than as a dividend or
distribution or issuance for cash to Holders as described in the immediately
preceding paragraph) shall be effected by the Company in a manner so as to not
violate the Securities Act. If the Company determines that an issuance of such
securities is required to be registered under the Securities Act, the Company
has agreed with the Depositary to (x) register such issuance to the extent
necessary, (y) alter the terms of the issuance to avoid the registration
requirements of the Securities Act or (z) direct the Depositary to take such
measures as are provided in Sections 4.03 through 4.05 of the Deposit Agreement
(which are summarized in paragraphs (16) through (18), respectively, above) or
other specific measures with respect to the acceptance for deposit of Shares to
prevent such issuance from being made in violation of the registration
requirements of the Securities Act.
The Company has agreed with the Depositary that neither the Company nor
any company controlling, controlled by or under common control with the Company
will at any time deposit any Shares, either upon original issuance or upon a
sale of Shares previously issued and reacquired by the Company or by any such
controlled or controlling company unless such transaction is registered under
the Securities Act or is exempt from registration under the Securities Act as
confirmed by a written opinion from counsel for the Company in the United
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States, which counsel shall be reasonably satisfactory to the Depositary.
(29) Amendment. The form of this GDR and any provisions of the Deposit
Agreement may, with the consent of the Company, at any time and from time to
time be amended by the Depositary in any respect which it may deem necessary or
desirable. Any amendment which imposes or increases any fees or charges (other
than taxes and other governmental charges), or which otherwise prejudice any
substantial existing right of Holders, shall not, however, become effective as
to outstanding GDRs until the expiration of 90 days (or 30 days in the case of
any amendment which shall impose or increase any fees of the Depositary for the
issuance, execution and delivery of GDRs or any fees or expenses in respect of
transfer or sales of Common Stock or any delivery expenses and charges incurred
by the Depositary in the conversion of foreign currency and in connection with
foreign exchange control regulations) after notice of such amendment shall have
been given to the Holders of outstanding GDRs. Every Holder at the time any
amendment becomes effective shall be deemed by continuing to hold such GDR 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 any Holder
to surrender such Holder's GDRs and receive therefor the Deposited Securities
represented thereby or to direct the Depositary to forward Notices of Conversion
to the Conversion Agent on such Holder's instructions and (pursuant to the
Common Stock Deposit Agreement) request the Depositary to use reasonable efforts
to sell or cause to be sold the shares of Common Stock delivered and deposited
with the Depositary upon conversion of Shares represented by GDRs and to
distribute the proceeds from the sale of such Common Stock to the persons
entitled thereto, in any case except in order to comply with provisions of
applicable law.
(30) Termination. The Depositary will at any time at the direction of the
Company terminate the Deposit Agreement by mailing notice of such termination to
the Holders of all GDRs then outstanding at least 90 days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
the Deposit Agreement if the Depositary delivers to the Company a written notice
of its election to resign, and a qualified successor depositary shall not have
been appointed and accepted its appointment as provided in Section 5.04 of the
Deposit Agreement (which is summarized in paragraph (27) above) within 90 days
after such delivery. If any GDRs remain outstanding after the date of
termination, the Depositary thereafter will discontinue the registration of
transfers of GDRs, will suspend the distribution of dividends to the Holders
thereof, will not accept deposits of Shares (and will instruct each Custodian to
act accordingly), and will not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary will continue to
collect dividends and other distributions pertaining to Deposited Securities,
will sell property and rights and convert Deposited Securities into cash as
provided in the Deposit Agreement, and will continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any Shares, rights or other
property (in all such cases, without liability for interest), in exchange for
GDRs surrendered to the Depositary. At any time after the expiration of six
months from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold the net
proceeds of any such sale, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, for the pro rata benefit
of the Holders of GDRs which have not theretofore been surrendered. After making
such sale, the Depositary will be discharged from all obligations under the
Deposit Agreement and the Company Agreement,
A-20
except to account for such net proceeds and other cash and for its obligations
under the indemnification provisions of Section 5.10 of the Deposit Agreement.
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 GDR and all rights thereunder, hereby
irrevocably constituting and appointing attorney-in-fact to transfer said GDR 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.
SIGNATURE GUARANTEED
A-21
EXHIBIT B
CHARGES OF THE DEPOSITARY
Service Rate By Whom Paid
------- ---- ------------
1) Creation of Global Waived N/A
Depositary GDR program
2) Annual maintenance fee for Waived N/A
GDR program
3) Issuance of GDR against $0.05 per GDS Party receiving
deposit of GDR Shares
(except upon Initial Deposit)
or other depositary receipts
4) Withdrawal of Deposited $0.05 per GDS Party
Securities (including for the surrendering GDR
purpose of conversion of the
Shares) against surrender of
GDRs
5) Sale or exercise of rights or $0.02 per GDS per Party for whom the
other corporate action distribution sale or exercise of
involving distributions in rights, is made
respect of Deposited
Securities
B-1
EXHIBIT C
NOTICE OF CONVERSION
JPMorgan Chase Bank, as Depositary
ADR Department
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 000000
Re: Philippine Long Distance Telephone
Company (the "Company")
1. The undersigned Holder hereby irrevocably authorizes the Depositary
on such Holder's behalf, to exercise the option to convert shares of the Series
III Convertible Preferred Stock of the Company (the "Shares") represented by the
GDSs evidenced by the GDR surrendered in connection herewith into shares of
Common Stock (and any other applicable securities or property) of the Company in
accordance with the terms of and conditions of the Shares and as provided in
Section 2.06 of the Deposit Agreement relating to the Shares, dated as of
November 29, 1994, as amended from time to time, among JPMorgan Chase Bank, as
Depositary, and the Holders from time to time of the GDRs issued thereunder, and
directs that Common Stock of the Company deliverable upon such conversion be
registered in the name of and delivered, together with a check in payment for
any fractional shares of Common Stock and any other property deliverable upon
conversion, to the undersigned unless a different name has been indicated below.
2. If the undersigned desires that the shares of Common Stock
deliverable upon conversion of the Shares be deposited in accordance with the
terms and conditions of the depositary arrangements of the Depositary dated as
of October 19, 1994, as amended, relating to the Common Stock (the "Common Stock
Deposit Agreement"), the undersigned should so indicate below and designate
Citicorp Trade Services Limited as the registered holder of such Common Stock.
3. The undersigned hereby agrees to pay all fees (including the fees of
the Depositary), taxes (including stamp, transfer and capital gains taxes) and
governmental or other charges payable in connection with the surrender and
cancellation of the GDRs and GDSs, the conversion of the Shares and the
issuance, registration and delivery and, if applicable, the deposit of the
Common Stock in accordance with the terms and conditions of the Common Stock
Deposit Agreement (other than any capital or stamp duties payable in the
Philippines in respect of the Common Stock that are payable by the Company). If
the number of Shares indicated above is less than the number of Shares on
deposit with the Depositary in respect of a GDR surrendered in connection
herewith the undersigned directs the Depositary to issue to the undersigned,
unless a different name is indicated below, a new GDR evidencing Shares for the
balance not to be converted.
4. The undersigned understands and agrees that the Depositary has
agreed to forward to the Conversion Agent this Notice of Conversion and the
Shares being converted in
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connection herewith as a matter of convenience only and that this Notice of
Conversion will not be effective until received by the Conversion Agent and all
conditions precedent to the conversion of Shares have been satisfied. Neither
the Depositary nor the Custodian shall be responsible or liable to any Holder
for any loss, liability or expense suffered by such Holder arising from any
delay in forwarding this Notice of Conversion or the Shares being converted in
connection herewith to the Conversion Agent.
5. Name and address of person in whose name the Common Stock delivered
upon conversion of the Shares are to be registered:
Name:
Address:
6. The undersigned hereby requests that the certificates for the Common
Stock (together with any securities, cash or other property) required to be
delivered upon conversion:
(a) be delivered at the office in Manila of the Conversion Agent
(which currently is Citibank, Manila, 0000 Xxxxx xx Xxxxx, Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxxx) to the order of:
Name:
Address:
OR
(b) be despatched (at the undersigned's risk and expense) to the
person whose name and address is given below and in the manner
specified below:
Name:
Address:
Manner of despatch:
7. The undersigned acknowledges that the terms of the Shares set forth
certain conditions precedent which must be fulfilled before the Shares specified
above will be treated as effectively deposited for conversion.
8. The undersigned acknowledges that if Section 6(b) above is
completed, despatch will be made at the risk and expense of the converting
Shareholder and the converting Shareholder will be required to prepay the
expenses of, and submit any necessary documents required in order to effect,
despatch in the manner specified.
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Name: Date:
Address:
Signature:
* * * *
For Custodian's use only:
Certificate numbers of Shares delivered to Conversion Agent:
For Conversion Agent's use only:
1. Date of Receipt:
2. (A) Aggregate number of Shares deposited for conversion multiplied
by the Reference Amount (US$25 per Share):________________________.
(B) Conversion Price:______________________.
___________ (C) Number of shares of Common Stock issuable:_________(disregard
fractions)
________ 3. If applicable, amount of cash payment due to converting holder in
respect of fractions of shares of Common Stock:___________________.
C-3
