Unassociated Document
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Rule 424(b)(3)
333-102566
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| Number
_________ |
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American
Depositary Shares
(One
American Depositary
Share
Represents One
Fully
Paid Share of Common
Stock)
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As
of the date of the Deposit Agreement, as last amended, the Nominee referred to
herein is J.P. Morgan Hong Kong Nominees Limited.
Effective
June 30, 2009, the Custodian is The Hongkong and Shanghai Banking Corporation
Limited, Philippines.
[FORM
OF FACE OF AMERICAN DEPOSITARY RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
evidencing
American
Depositary Shares
representing
DEPOSITED
FULLY PAID SHARES OF COMMON STOCK
of
PHILIPPINE
LONG DISTANCE TELEPHONE COMPANY
(Incorporated
under the laws of
the
Republic of the Philippines)
THE
HOLDER OF THIS AMERICAN 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 COMMON STOCK UNDER PHILIPPINE LAW.
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of the
United States, as depositary hereunder (the "Depositary"), hereby certifies
that _________ is the owner of that number of American Depositary Shares
("ADSs"), indicated on the records of the Depositary, representing deposited
fully paid Common Stock (the “Common Stock”), including evidence of rights to
receive such Common Stock (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 ADS represents one (1) share of
Common Stock 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 The
Hongkong and Shanghai Banking Corporation Limited -
Philippines (the “Custodian”). The Deposit Agreement and this
American Depositary Receipt (“ADR”) (which includes the provisions set forth on
the reverse hereof) shall be governed by and construed in accordance with the
laws of the State of New York.
(1) The Deposit
Agreement. This ADR is
issued pursuant to the Common Stock Deposit Agreement dated as of October 19,
1994, as amended as of February 10, 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 ADRs issued thereunder, each of whom by accepting
an ADR 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 ADRs and the rights and duties
of the Depositary in respect of the Common Stock 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 Common Stock, 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 ADR 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 ADRs and
Withdrawal of Deposited Securities. Subject to the terms and conditions
of the Deposit Agreement, upon (i) surrender of ADSs by delivery of ADRs at the
Principal New York Office of the Depositary for the purpose of withdrawal or
sale of the Deposited Securities represented thereby and (ii) payment of all
fees (including the fees of the Depositary (which are summarized in paragraph
(8) of this ADR) 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 ADRs, a Holder is entitled to (A) physical delivery, to him or
upon his order, or electronic delivery, if available, to an account outside the
United States designated by such person of the Common Stock and any other
documents of title at the time represented by the ADR together with such other
delivery of Deposited Securities (other than Common Stock) then represented by
ADSs as the Depositary may effect or (B) request that the Depositary use
reasonable efforts to sell or cause to be sold the Common Stock represented by
the ADSs evidenced by such ADRs 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.
An ADR
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 or the sale of Common Stock as provided under the Deposit Agreement
and described herein shall deliver to the Depositary written instructions
requesting the Depositary to cause (i) 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 and subject
to the provisions of this paragraph (2)) to or upon the written order of a
person or persons designated in such order or (ii) the Common Stock being
withdrawn to be so sold.
Upon the
receipt of written instructions to use reasonable efforts to sell or cause to be
sold the Common Stock represented by ADSs being withdrawn from deposit under the
Deposit Agreement and compliance with the other provisions of Section 2.05 of
the Deposit Agreement, the Depositary will, subject to the terms and conditions
of the Deposit Agreement and applicable laws and regulations, direct the
Custodian to make reasonable efforts, in its sole discretion, to sell or cause
to be sold the Common Stock represented by the ADSs so surrendered, through a
securities company in the Philippines selected by the Depositary, over the
Philippine Stock Exchange. Any such sale of Common Stock will be at the risk and
expense (including any brokerage commissions), of the Holder requesting such
sale. Upon receipt of any proceeds from such sale (less any fees and expenses
incurred in connection with such sale, including brokerage commissions) the
Depositary will, subject to the terms of Section 4.06 of the Deposit Agreement
(which are summarized in paragraph (18) below), convert or cause to be converted
any such proceeds into dollars and distribute any such proceeds to or to the
order of the person or persons designated in such written instructions. The
Depositary may make delivery to such person or persons at the Principal New York
Office of the Depositary of any such proceeds of sale. The parties acknowledge
that no assurance can be given that the Depositary will be able to effect any
sale of any Common Stock in a timely manner or at a specified price,
particularly during periods of trading illiquidity or volatility with respect to
Common Stock.
Upon the
receipt of written instructions requesting the withdrawal and delivery of
Deposited Securities from deposit under the Deposit Agreement and compliance
with the other provisions 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 ADSs evidenced by such surrendered ADR or represented by the
ADSs specified in such written instructions; 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 Common Stock) 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
Common Stock) 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 an ADR 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 ADSs evidenced by such ADR 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 ADRs or written instructions for the
purpose of withdrawal of less than one share of Common Stock. In addition, the
Depositary shall only honor requests for withdrawal of whole numbers of shares
of Common Stock. In the case of surrender of an ADR evidencing a number of ADSs
representing other than a whole number of shares of Common Stock, the Depositary
will cause delivery of the appropriate whole number of shares of Common Stock as
provided in the Deposit Agreement and summarized herein, and will execute and
deliver to the person surrendering such ADR a new ADR evidencing ADSs
representing any remaining fractional shares of Common Stock.
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 ADR 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 ADR 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. Thereupon, the Depositary will execute a new ADR or ADRs
and deliver the same to or upon the order of the person entitled
thereto.
This ADR may be split into other ADRs
or may be combined with other ADRs into one ADR, evidencing the same aggregate
number of ADSs and registered in the name of the same Holder as the ADR or ADRs
surrendered. At the request of a Holder, the Depositary shall, for the purpose
of substituting a certificated ADR with a Direct Registration ADR, or vice
versa, execute and deliver a certificated ADR or a Direct Registration ADR, as
the case may be, for any authorized number of ADSs requested, evidencing the
same aggregate number of ADSs as those evidenced by the certificated ADR or
Direct Registration ADR, as the case may be,
substituted.
(4) Limitations on Execution and
Delivery, Transfer, Etc. of ADRs; Suspension of Delivery, Transfer, Etc.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any ADR for the purpose of
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the Holder, the presenter of an ADR or the depositor of
Common Stock, 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 (8) of this ADR) 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 may, after consultation with the Company, establish consistent with
the provisions of the Deposit Agreement.
The
delivery of ADRs against deposits of Common Stock generally or of particular
Common Stock may be suspended or withheld, or the registration of transfer of
ADRs in particular instances may be refused, or the registration of transfer
generally may be suspended, or the surrender of outstanding ADRs 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 Common Stock) 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 2.06 of the Deposit Agreement
(which are summarized in this paragraph (4)), JPMorgan Chase Bank, N.A. and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in ADRs. The Depositary may issue ADRs for
evidence of rights to receive Common Stock from the Company, or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Common Stock. Such evidence of rights
shall consist of written blanket or specific guarantees of ownership of Common
Stock furnished on behalf of the Holder hereof. Neither the Depositary nor the
Custodian shall lend Deposited Securities or ADRs; provided, however, that the
Depositary may issue ADRs prior to the receipt of Common Stock pursuant to
Section 2.02 of the Deposit Agreement (a "Pre-Release Transaction") and deliver
shares of Common Stock upon the receipt and cancellation of ADRs which have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release Transaction or the Depositary knows that such ADR has been
Pre-Released. The Depositary may receive ADRs 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 ADRs are to
be delivered (the "Applicant") that such person, or its customer, owns the
Common Stock to be remitted, (y) an unconditional guarantee by such person to
deliver to the Custodian the number of shares of Common Stock 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 of Common Stock in
trust for the Depositary until their delivery to the Depositary or Custodian,
reflect on its records the Depositary as owner of such shares of Common Stock
and deliver such Common Stock 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
ADRs issued by it pursuant to a Pre-Release Transaction and outstanding at
anytime generally will not exceed thirty percent (30%) of the ADRs issued by the
Depositary and with respect to which shares of Common Stock 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 ADRs and Common Stock 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 Common Stock 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 144 under the Securities
Act), unless a registration statement under the Securities Act is in effect as
to such Common Stock. The Depositary will use reasonable efforts to comply with
written instructions of the Company not to accept for deposit under the Deposit
Agreement any Common Stock 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 Common Stock 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 Common Stock) of the Common Stock 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 ADR 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.
(5) Liability of Holders for
Taxes and Other Charges. If any tax or governmental or other charge shall
become payable with respect to this ADR, to any Deposited Securities represented
by the ADSs evidenced hereby, 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 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 ADR or any deposit or withdrawal of Deposited Securities
represented by the ADSs 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
ADSs 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.
(6) Warranties by
Depositor. Each person depositing Common Stock under the Deposit
Agreement shall be deemed thereby to represent and warrant that such Common
Stock and each certificate therefor are validly issued and outstanding, fully
paid and nonassessable, that the person making such deposit is duly authorized
to do so and that such shares of Common Stock are not "restricted securities" as
such term is defined in Rule 144 of the Securities Act. Such representations and
warranties shall survive the deposit of Common Stock and issuance of ADRs in
respect thereof.
(7) Compliance with U.S.
Securities Laws. Notwithstanding anything in the Deposit 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.
(8) Charges of
Depositary. The Depositary may charge (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Common Stock, issuances in respect of Common Stock distributions, rights
and other distributions, issuances pursuant to a stock dividend or stock split
declared by the Company, or issuances pursuant to a merger, exchange of
securities or any other transaction or event affecting the ADSs or the Deposited
Securities, and (ii) each person surrendering ADSs for withdrawal of
Deposited Securities or whose ADSs are cancelled or reduced for any other
reason, U.S. $5.00 for each 100 ADSs (or portion thereof) issued, delivered,
reduced, cancelled or surrendered (as the case may be). The Depositary may
sell (by public or private sale) sufficient securities and property received in
respect of Common Stock distributions, rights and other distributions prior to
such deposit to pay such charge. The following additional charges shall be
incurred by the Holders, by any party depositing or withdrawing Common Stock or
by any party surrendering ADSs, to whom ADSs are issued (including, without
limitation, issuance pursuant to a stock dividend or stock split declared by the
Company or an exchange of stock regarding the ADSs or the Deposited Securities
or a distribution of ADSs under the Deposit Agreement), whichever is applicable
(i) a fee of $.02 or less per ADS (or portion thereof) for any Cash distribution
made, (ii) to the extent not prohibited by the rules of the primary stock
exchange upon which the ADSs are listed, a fee of $1.50 per ADR or ADRs for
transfers made, (iii) a fee for the distribution or sale of securities, such fee
being in an amount equal to the fee for the execution and delivery of ADSs
referred to above which would have been charged as a result of the deposit of
such securities (for purposes of this paragraph treating all such securities as
if they were Common Stock) but which securities or the net cash proceeds from
the sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv) a fee
of US$0.02 per ADS (or portion thereof) per year for the services performed by
the Depositary in administering the ADRs (which fee shall be assessed against
Holders as of the record date or dates set by the Depositary not more than once
each calendar year and shall be payable at the sole discretion of the Depositary
by billing such Holders or by deducting such charge from one or more cash
dividends or other cash distributions), and (v) such fees and expenses as are
incurred by the Depositary (including without limitation expenses incurred on
behalf of Holders in connection with compliance with foreign exchange control
regulations or any law or regulation relating to foreign investment) in delivery
of Deposited Securities or otherwise in connection with the Depositary's or its
Custodian's compliance with applicable law, rule or regulation. The Company will
pay all other charges and expenses of the Depositary and any agent of the
Depositary (except the Custodian) pursuant to agreements from time to time
between the Company and the Depositary, except (i) stock transfer or other taxes
and other governmental charges (which are payable by Holders or persons
depositing Common Stock), (ii) cable, telex and facsimile transmission and
delivery charges incurred at the request of persons depositing, or Holders
delivering Common Stock, ADRs or Deposited Securities (which are payable by such
persons or Holders), (iii) transfer or registration fees for the registration or
transfer of Deposited Securities on any applicable register in connection with
the deposit or withdrawal of Deposited Securities (which are payable by persons
depositing Common Stock or Holders withdrawing Deposited Securities), (iv)
expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency), and (v) any
other charge payable by any of the Depositary, any of the Depositary’s agents,
including, without limitation, the Custodian, or the agents of the Depositary’s
agents in connection with the servicing of the Common Stock or other Deposited
Securities such or in connection with other distributions to holders of Common
Stock pursuant to Section 4.02, 4.03, 4.04 or 4.05 of the Deposit Agreement
(which are summarized in paragraphs (14), (15), (16), (17), respectively, of the
form of ADR) (which charge shall be assessed against Holders as of the record
date or dates set by the Depositary and shall be payable at the sole discretion
of the Depositary by billing such Holders or by deducting such charge from one
or more cash dividends or other cash distributions). Such charges may at any
time and from time to time be changed with the consent of the Company. 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 (8))
shall survive the termination of the Deposit Agreement and, as to any
Depositary, the resignation of such Depositary pursuant to Section 5.04 of the
Deposit Agreement.
(9) Title to ADRs.
Subject to any limitations set forth herein or in the Deposit Agreement, it is a
condition of this ADR, 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 ADR (and to each ADS evidenced
hereby) is transferable by delivery with the 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 ADR 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.
(10)
Validity of
ADR. This ADR shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose unless this ADR 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 ADR is counter-signed by the manual signature of a
duly authorized officer of the Registrar and dated by such officer.
(11)
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 ADR 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.
(12)
Ownership
Restrictions. The Company may restrict transfers of Common Stock if such
transfer might result in ownership of Common Stock 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 Common Stock or
ADSs, including, but not limited to, a mandatory sale or disposition on behalf
of a Holder of the Common Stock represented by the ADSs held by such Holder in
excess of such limitation, if and to the extent such disposition is permitted by
applicable law.
(13) Available
Information. The Company
is subject to 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 copied at the public reference
facilities maintained by the Commission located at the date of this Deposit
Agreement at 100 F Street, N.E., Washington, D.C. 20549.
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JPMORGAN
CHASE BANK, N.A.,
as
depositary
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By:
________________________
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Dated:
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The
address of the Principal New York Office of the Depositary is 4 New York Plaza,
13th
Floor, New York, New York 10004.
(FORM OF
REVERSE OF AMERICAN DEPOSITARY RECEIPT)
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
(14)
Cash Distributions;
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 (18) 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 ADSs 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 ADSs
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.
(15)
Distributions in
Common Stock. If any distribution in respect of any Deposited Securities
consists of a dividend in, or free distribution of, Common Stock, the Depositary
may, after consultation with the Company, distribute to the Holders entitled
thereto, in proportion to the number of ADSs representing such Deposited
Securities held by them respectively, additional ADRs for an aggregate number of
ADSs representing the number of shares of Common Stock 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 Common Stock 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 Common Stock
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 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 ADRs
or adjusting the Depositary's records for fractional ADSs in any such case, the
Depositary will sell the number of shares of Common Stock 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 (14) above). If additional
ADRs are not so distributed (except pursuant to the preceding sentence), or such
change in the records of the Depositary is not made, each ADS will thenceforth
also represent its proportionate interest in the additional shares of Common
Stock distributed upon the Deposited Securities represented
thereby.
(16) 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 Common Stock 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 (27) 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 ADSs 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 averaged or other practicable basis without regard to any distinctions
among such Holders because of exchange restrictions or the date of delivery of
any ADR or ADRs, 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.
(17)
Distributions Other
Than Cash, Common Stock or Rights. Whenever the Custodian or the
Depositary shall receive any distribution other than cash, Common Stock 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 ADSs 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.
(18)
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 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.
(19)
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 Common Stock or other
Deposited Securities or any other meeting of holders of the Company's securities
at which holders of Common Stock or other Deposited Securities are entitled to
vote, or whenever, for any reason, the Depositary causes a change in the number
of shares of Common Stock that are represented by each ADS, or whenever the
Depositary finds it necessary or convenient in respect of any matter, 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 of Common Stock represented by a ADS or in respect of such other
matter. Subject to the provisions of Sections 4.02 through 4.06 of the Deposit
Agreement (which are summarized in paragraphs (14) through (18), 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 of
Common Stock represented by each ADS, in proportion to the number of ADSs held
by them respectively, to give such voting instructions, to receive such notice
or solicitation or to act in respect of any matter.
(20)
Voting of Deposited
Securities. As soon as practicable after receipt of notice of any meeting
of holders of Common Stock or other Deposited Securities or any other meeting of
holders of the Company's securities at which holders of Common Stock 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 (19) 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 of Common Stock or other Deposited Securities represented
by their respective ADSs evidenced by their respective ADRs. 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 ADSs evidenced by such ADR in accordance with the
instructions set forth in such request.
The
Depositary may not itself exercise any voting discretion over any Common Stock.
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
Common Stock represented by ADSs evidenced by such Holder's ADRs, 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 Common Stock 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 Common Stock under
Philippine law.
(21)
Changes Affecting
Deposited Securities. Upon any change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, 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 ADRs will, subject to the terms of the Deposit
Agreement and 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 ADRs
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 ADRs, as in the case of a
stock dividend on the Common Stock, or call for the surrender of outstanding
ADRs to be exchanged for new ADRs 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 (14) 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 (which
is summarized in this paragraph (21)) in respect of the Deposited Securities,
the Depositary will give notice thereof in writing, at the Company's expense, to
all Holders.
(22)
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 each Custodian copies of (i) the Deposit Agreement and any
related documents, (ii) the Common 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 Common
Stock 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 Section 5.07 of the
Deposit Agreement. The Depositary will keep books for the registration of ADRs
and their transfer which at all reasonable times will be open for inspection by
the Company and Holders of ADRs, provided that such
inspection shall not be for the purpose of communicating with Holders of ADRs 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 ADRs.
(23)
Withholding.
Notwithstanding any other provision of the Deposit Agreement, in the event that
the Depositary determines that any distribution of property (including Common
Stock, rights to subscribe therefor and other securities) is subject to any tax
or governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Common
Stock, 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 ADSs 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.
(24)
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 ADRs, 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 Common Stock 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 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 (24)), 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 agent are
acting only in a ministerial capacity as Depositary for the Common
Stock.
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or an ADR, the
Depositary and its agents may fully respond to any and all written demands or
requests for information maintained by or on its behalf in connection with the
Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise related
hereto to the extent such information is requested or required by or pursuant to
any lawful authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other regulators.
Neither the Depositary, the Company nor any of their respectives agents shall be
liable to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages.
(25)
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 (14), (15) and (17),
respectively, above)) or an offering or distribution pursuant to Section 4.04 of
the Deposit Agreement (which is summarized in paragraph (16) 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.
(26)
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 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 appointed The
Hongkong and Shanghai Banking Corporation Limited - Philippines ,
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.
(27)
Issuance of Additional
Common Stock, Etc. In the event of any issuance of additional Common
Stock or of other securities (including rights and convertible or exchangeable
securities) as a dividend or distribution with respect to the Common Stock or
other Deposited Securities, or future issuances to Holders for cash of
additional Common Stock or such other securities, the Depositary will not
distribute any such additional Common Stock 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, stating whether or not the circumstances of such
issue are such as to make it necessary for a registration statement under the
Securities Act to be in effect at or prior to making such dividend or
distribution available to the Holders entitled thereto and, if in the opinion of
such counsel a registration statement is required, stating that there is a
registration statement in effect which will cover the issuance of such
securities.
The
Company has agreed with the Depositary that any future issuances of (1)
additional Common Stock, (2) rights, preferences or privileges to subscribe for
Common Stock, (3) securities convertible into or exchangeable for Common Stock,
or (4) rights, preferences or privileges to subscribe for securities convertible
into or exchangeable for Common Stock (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 as described in paragraphs (15) through (17),
respectively, above) or other specific measures with respect to the acceptance
for deposit of Common Stock 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 Common Stock, either upon original issuance or upon a sale of
Common Stock 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
States, which counsel shall be reasonably satisfactory to the
Depositary.
(28)
Amendment. The
form of this ADR 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 ADRs 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 ADRs 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 ADRs. Every Holder at the time any
amendment becomes effective shall be deemed by continuing to hold such ADR to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of any Holder
to surrender such Holder's ADRs and receive therefor the Deposited Securities
represented thereby or to request the Depositary to use reasonable efforts to
sell or cause to be sold Common Stock constituting Deposited Securities over a
stock exchange in the Philippines and to distribute the proceeds therefrom to
the persons entitled thereto, in any case except in order to comply with
provisions of applicable law.
(29)
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
ADRs 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 (26) above) within 90 days
after such delivery. If any ADRs remain outstanding after the date of
termination, the Depositary thereafter will discontinue the registration of
transfers of ADRs, will suspend the distribution of dividends to the Holders
thereof, will not accept deposits of Common Stock (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 Common
Stock, rights or other property (in all such cases, without liability for
interest), in exchange for ADRs 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 ADRs 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, 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 ADR and
all rights thereunder, hereby irrevocably constituting and appointing
_______________ attorney-in-fact to transfer said ADR on the books of the
Depositary with full power of substitution in the premises.
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Dated:
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Name:______________
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By:
______________
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Title:
______________
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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.
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SIGNATURE
GUARANTEED
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