Rule 424(b)(3) 333-102566
Number _________
American Depositary Shares
(One American Depositary
Share Represents One
Fully Paid Share of Common
Stock)
As of the date of the Deposit Agreement, as last amended, the Nominee referred
to herein is J.P. Morgan Hong Kong Nominees Limited.
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 Citibank, N.A. (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.
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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.
4
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 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.
5
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
(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 will charge the
party receiving an ADR against deposit of Common Stock or other depositary
receipts, $0.05 per ADS. The Depositary will charge the party surrendering an
ADR in connection with the withdrawal of Deposit Securities, $0.05 per ADS. The
Depositary will charge the party for whom the sale or exercise of rights, is
made, $0.02 per ADS per distribution. Holders will pay through deduction or
otherwise, in addition to the fees and charges summarized above in this
paragraph (8) 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 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 Common Stock generally
on the share register of the Company or its appointed agent for the registration
of transfer and accordingly applicable to transfers of Common Stock 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, (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 Common Stock 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 (18) hereof) 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) and (17),
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 (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.
7
(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 Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
8
JPMORGAN CHASE BANK, N.A.,
as depositary
By:_____________________
Dated:
The address of the Principal New York Office of the Depositary is 4 New
York Plaza, New York, New York 10004.
9
SUMMARY OF CERTAIN ADDITIONAL PROVISIONSOF 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
10
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.
11
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.
12
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.
13
(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,
14
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
15
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.
16
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.
(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.
17
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 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.
(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
18
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
19
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.
20
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: 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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