MANUFACTURAS DE PAPEL, C.A. (MANPA), S.A.C.A.
CITIBANK, N .A.,
As Depositary,
AND
HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of June 11, 1996
Table of Contents
Page
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PARTIES ............................................................... 1
RECITALS ............................................................... 1
ARTICLE I
DEFINITIONS
SECTION 1.01. Affiliate .................................................... 1
SECTION 1.02. American Depositary Shares ................................... 1
SECTION 1.03. Beneficial Owner ............................................. 2
SECTION 1.04. Commission ................................................... 2
SECTION 1.05. Company ...................................................... 2
SECTION 1.06. Custodian; Custodians ........................................ 2
SECTION 1.07. Deliver; Delivery ............................................ 2
SECTION 1.08. Deposit Agreement ............................................ 2
SECTION 1.09. Depositary ................................................... 2
SECTION 1.10. Deposited Securities ......................................... 3
SECTION 1.11. Dollars; $; Bolivars; Bs ..................................... 3
SECTION 1.12. Exchange Act ................................................. 3
SECTION 1.13. Holder ....................................................... 3
SECTION 1.14. Principal Office ............................................. 3
SECTION 1.15. Receipts ..................................................... 3
SECTION 1.16. Registrar .................................................... 3
SECTION 1.17. The Republic of Venezuela .................................... 4
SECTION 1.18. Restricted Securities ........................................ 4
SECTION 1.19. Securities Act ............................................... 4
SECTION 1.20. Share Registrar .............................................. 4
SECTION 1.21. Shares ....................................................... 0
XXXXXXX 0.00. Xxxxxx Xxxxxx ................................................ 5
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts ......................... 5
SECTION 2.02. Deposit of Shares ............................................ 6
SECTION 2.03. Execution and Delivery of Receipts ........................... 7
SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts ... 8
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited Securities . 9
SECTION 2.06. Limitations on Execution and Delivery, Transfer, etc ......... 11
SECTION 2.07. Lost Receipts, etc ........................................... 12
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts;
Maintenance of Record ........................................ 12
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information ............ 12
SECTION 3.02. Liability of Holder for Taxes and Other Charges .............. 13
SECTION 3.03. Representations and Warranties on Deposit of Shares .......... 13
SECTION 3.04. Compliance with Information Requests ......................... 14
SECTION 3.05. Ownership Restrictions ....................................... 14
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney ............................................ 14
SECTION 4.02. Cash Distributions ........................................... 15
SECTION 4.03. Distribution in Shares ....................................... 15
SECTION 4.04. Rights ....................................................... 16
SECTION 4.05. Distributions Other Than Cash, Shares or Rights .............. 18
SECTION 4.06. Redemption ................................................... 19
SECTION 4.07. Conversion of Foreign Currency ............................... 19
SECTION 4.08. Fixing of Record Date ........................................ 20
SECTION 4.09. Voting of Deposited Securities ............................... 21
SECTION 4.10. Changes Affecting Deposited Securities ....................... 22
SECTION 4.11. Available Information ........................................ 23
SECTION 4.12. Reports ...................................................... 23
SECTION 4.13. List of Holders as Registered on the Books of The Depositary . 24
SECTION 4.14. Taxation ..................................................... 24
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Registrar .... 25
SECTION 5.02. Prevention or Delay in Performance ........................... 26
SECTION 5.03. Obligations of the Depositary, the Custodian and the Company . 27
SECTION 5.04. Resignation and Removal of the Depositary Appointment of
Successor Depositary ......................................... 28
SECTION 5.05. The Custodian ................................................ 29
SECTION 5.06. Notices and Reports .......................................... 30
SECTION 5.07. Issuance of Additional Shares, etc. .......................... 31
SECTION 5.08. Indemnification .............................................. 32
SECTION 5.09. Charges of Depositary ........................................ 33
SECTION 5.10. Certain Rights of the Depositary; Limitations ................ 34
SECTION 5.11. List of Restricted Securities Owners ......................... 35
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment, Supplemented ...................................... 35
SECTION 6.02. Termination .................................................. 36
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts ................................................. 37
SECTION 7.02. No Third-Party Beneficiaries ................................. 37
SECTION 7.03. Severability ................................................. 38
SECTION 7.04. Holders and Beneficial Owners as Parties; Binding Effect ..... 38
SECTION 7.05. Notices ...................................................... 38
SECTION 7.06. Governing Law and Jurisdiction ............................... 39
SECTION 7.07. Assignment ................................................... 40
SECTION 7.08. Compliance with U.S. Securities Laws ......................... 40
EXHIBIT A
[FORM OF FACE OF RECEIPT]
(1) The Deposit Agreement ........................................A-1
(2) Surrender of Receipts and Withdrawal of Deposited
Securities ...................................................A-2
(3) Transfers, Split-Ups and Combinations of
Receipts .....................................................A-3
(4) Pre-Conditions to Registration, Transfer, Etc. ...............A-4
(5) Compliance With Information Requests .........................A-5
(6) Ownership Restrictions .......................................A-5
(7) Liability of Holder for Taxes, Duties and Other Charges ......A-5
(8) Representations and Warranties of Depositors .................A-6
(9) Filing Proofs, Certificates and Other Information ............A-6
(10) Charges of Depositary ........................................A-7
(11) Title to Receipts ............................................A-8
(12) Validity of Receipt ..........................................A-8
[FORM OF REVERSE OF RECEIPTS]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Reports; Inspection of Transfer Books ........................A-9
(14) Dividends and Distributions in Cash, Shares,
etc. .........................................................A-9
(15) Fixing of Record Date .......................................A-14
(16) Voting of Deposited Securities ..............................A-15
(17) Changes Affecting Deposited Securities ......................A-15
(18) Indemnification .............................................A-16
(19) Liability of the Company and the Depositary .................A-18
(20) Resignation and Removal of the Depositary; Appointment of
Successor Depositary ........................................A-18
(21) Amendment, Supplement .......................................A-19
(22) Termination .................................................A-20
(23) Compliance with U.S. Securities Laws ........................A-21
(24) Certain Rights of the Depositary; Limitations ...............A-22
EXHIBIT B
CHARGES OF THE DEPOSITARY ...................................................B-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of June 11, 1996 among Manufacturas de Papel, C.A.
(MANPA), S.A.C.A., a company incorporated under the laws of Venezuela, and its
successors (the "Company"), CITIBANK, N.A., a national banking association
organized under the laws of the United States of America (the "Depositary"), and
all Holders and Beneficial Owners of Receipts issued hereunder (all such terms
as hereinafter defined).
WITNESSETH:
WHEREAS, the Company has duly authorized and has outstanding 1,147,004,712
common shares, par value of Ten Bolivars (Bs. 10.00) each (the "Shares"), to be
issued with such terms and provisions as specified in or pursuant to one or more
resolutions of its Shareholders' Meetings; and
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of the Shares from time to time with the
Depositary or with the Custodian, as hereinafter defined, as agent of the
Depositary, for the purposes set forth in this Deposit Agreement, for the
creation of American Depositary Shares (as hereinafter defined) representing
such Shares so deposited and for the execution and delivery of Receipts
evidencing such American Depositary Shares; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement, the entering into of which
Deposit Agreement has been approved pursuant to a resolution of the Company's
Board of Directors on its meeting held, on June 26, 1995.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. Affiliate. The term "Affiliate" shall have the meaning
assigned to it under Regulation C of the Securities Act as hereinafter defined.
SECTION 1.02. American Depositary Shares. The terms "American Depositary
Shares" and "ADS" shall mean, with respect to any Receipt, the rights evidenced
by the Receipts issued and delivered hereunder, including the interests in the
Deposited Securities granted to the
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Holder of Receipts pursuant to the terms and conditions of this Deposit
Agreement. Each American Depositary Share shall represent twenty five (25)
Shares, until there shall occur a distribution upon Deposited Securities
referred to in Section 4.04 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional Receipts are not executed and
delivered, and thereafter each American Depositary Share shall represent the
Shares or Deposited Securities specified in such Sections.
SECTION 1.03. Beneficial Owner.The term "Beneficial Owner" shall have the
meaning assigned to it under Section 13 (d) of the Exchange Act, as hereinafter
defined.
SECTION 1.04. Commission. The term "Commission" shall mean the Securities
and Exchange Commission of the United States or any successor governmental
agency in the United States.
SECTION 1.05. Company. The term "Company" shall mean Manufacturas de
Papel, C.A. (MANPA), S.A.C.A., a company incorporated and existing under the
laws of Venezuela, having its registered office at Manufacturas de Papel, C.A.
(MANPA), S.A.C.A., Av. Xxxxxxxxx xx Xxxxxxx con Calle El Parque, Torre Country
Club, piso 11, Chacaito, Caracas 1050, Venezuela, and its successors.
SECTION 1.06. Custodian; Custodians. The term "Custodian" shall mean, as
of the date hereof, Citibank, N.A., having its principal office at Carmelitas a
Xxxxxxxxxx, Edif. Xxxxxxxx, Xxxxxxxx Xxxxxx 0000, Xxxxxxx 0000-X, Xxxxxxxxx,
Atn. Xxxx Xxxxx, Vice President, as Custodian and agent of the Depositary for
the purposes of this Deposit Agreement, and any other firm or corporation which
may be appointed by the Depositary pursuant to the terms of Section 5.05 as a
successor or an additional custodian or custodians hereunder, as the context
shall require, and the term "Custodians" shall mean all of them, collectively.
SECTION 1.07. Deliver; Delivery. The terms "deliver" and "delivery" shall
mean, when used in respect of American Depositary Shares, Receipts, Deposited
Securities and Shares, the physical delivery of the certificate representing
such security, or the electronic delivery of such security by means of
book-entry transfer, if available.
SECTION 1.08. Deposit Agreement. The term "Deposit Agreement" shall mean
this instrument as it may from time to time be amended in accordance with the
terms hereof and all instruments supplemental hereto.
SECTION 1.09. Depositary. The term "Depositary" shall mean Citibank, N.A.,
a national banking association incorporated under the laws of the United States
of America, and any successor appointed pursuant to Section 5.04 as Depositary
hereunder.
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SECTION 1.10. Deposited Securities. The term "Deposited Securities" as of
any time shall mean Shares at such time deposited under this Deposit Agreement
and any and all other Shares, property and cash at such time held by the
Depositary or the Custodian in respect thereof or in lieu of such deposited
Shares and other Shares, property and cash, subject in the case of cash to the
provisions of Section 4.08.
SECTION 1.11. Dollars; $; Bolivars; Bs. The term "dollars" or "Dollars",
"Cent" and the symbol "$" shall refer to the lawful currency of the United
States. The term "Bolivars", and the symbol "Bs." shall refer to the lawful
currency of the Republic of Venezuela.
SECTION 1.12. Exchange Act. The term "Exchange Act" shall mean the United
States Securities Exchange Act of 1934, as from time to time amended.
SECTION 1.13. Holder. The term "Holder" shall mean the person in whose
name a Receipt is registered on the books of the Depositary or the Registrar, if
any, maintained for such purpose, and shall include the Beneficial Owner, if
any, of the Deposited Securities evidenced by such Receipt.
SECTION 1.14. Principal Office.The term "Principal Office", when used with
respect to the Depositary, shall mean the principal office of the Depositary at
which at any particular time its depositary receipt business shall be
administered, which, at the date of this Deposit Agreement, is located at 000
Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
SECTION 1.15. Receipts. The term "Receipts" shall mean the American
Depositary Receipts issued hereunder evidencing such American Depositary Shares
substantially in the form of Exhibit A annexed hereto, as such American
Depositary Receipts may be amended from time to time in accordance with the
provisions of this Deposit Agreement. A Receipt may be issued in denominations
of any number of American Depositary Shares.
SECTION 1.16. Registrar. The term "Registrar" shall mean the Depositary
or, upon the request or with the approval of the Company, any bank or trust
company having an office in the Borough of Manhattan, the City of New York,
which shall be appointed by the Depositary to register Receipts and transfers of
Receipts as herein provided, and shall include any co-registrar appointed by the
Depositary, upon the request or with the approval of the Company, for such
purposes. Registrars (other than the Depositary) may be removed and substitutes
appointed by the Depositary upon the request or with the approval of the
Company. Each Registrar (other than the Depositary) appointed pursuant to this
Deposit Agreement shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
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SECTION 1.17. The Republic of Venezuela.The term "Venezuela" shall mean
the Republic of Venezuela.
SECTION 1.18. Restricted Securities. The term "Restricted Securities"
shall mean Shares, or Receipts representing such Shares, which are acquired
directly or indirectly from the Company or its Affiliates in a transaction or
chain of transactions not involving any public offering or which are subject to
resale limitations under the Securities Act, as defined below, or which are held
by an officer, director (or persons performing similar functions) or other
Affiliate of the Company, or which are subject to other restrictions on sale or
deposit under the laws of the United States, the Republic of Venezuela, or under
a shareholder agreement or the By-Laws of the Company or under the regulations
of an applicable securities exchange.
SECTION 1.19. Securities Act. The term "Securities Act" shall mean the
United States Securities Act of 1933, as from time to time amended.
SECTION 1.20. Share Registrar. The term "Share Registrar" shall mean Banco
Venezolano de Credito S.A.C.A. a depository institution organized under the laws
of the Republic of Venezuela, which carries out the duties of registrar for the
Shares or any successor as Share Registrar for such Shares appointed by the
Company.
SECTION 1.21. Shares. The term "Shares" shall mean the Company's
1,147,004,712 common shares, Ten Bolivars (Bs. 10.00) par value validly issued
and outstanding and may, if the Depositary so agrees after consultation with the
Company, include evidence of the right to receive Shares; provided that in no
event shall Shares include evidence of the right to receive Shares with respect
to which the full purchase price has not been paid or Shares as to which
preemptive rights have theretofore not been validly waived or exercised;
provided further, however, that, if there shall occur any change in par value,
split-up or consolidation or any other reclassification or, upon the occurrence
of an event described in Section 4.11, an exchange or conversion in respect of
the Shares of the Company, the term "Shares" shall thereafter represent the
successor securities resulting from such change in par value, split-up or
consolidation or such other reclassification or such exchange or conversion.
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XXXXXXX 0.00. Xxxxxx Xxxxxx. The term "United States" shall have the
meaning assigned to it under Regulation Xxxxxx the Securities Act.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. American Depositary
Shares shall be evidenced by definitive Receipts which shall be engraved,
printed or lithographed or shall be in such other form as may be agreed upon by
the Company and the Depositary, and in any event shall be substantially in the
form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as may be required hereunder or by any
applicable law, regulation or usage or to indicate any special limitation or
restrictions to which any particular Receipts are subject. Receipts shall be
executed and dated by the Depositary by the manual signature of a duly
authorized officer of the Depositary; provided, however, that such signature may
be a facsimile if such Receipts are countersigned by the manual signature of a
duly authorized employee of the Registrar and dated by such employee. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
enforceable for any purpose, unless such Receipt shall have been executed by the
manual signature of a duly authorized officer of the Depositary or the
Registrar, and such execution of any Receipt by manual signature shall be
conclusive evidence, and the only evidence, that such Receipt has been duly
executed and delivered hereunder. The Registrar shall maintain separate books in
which each Receipt evidencing such American Depositary Shares so executed and
delivered as hereinafter provided and the transfer of each American Depositary
Share shall be registered. Receipts bearing the facsimile signature of a
duly-authorized officer of the Depositary, who was at the time of signature a
proper officer of the Depositary, shall bind the Depositary, notwithstanding the
fact that such officer has ceased to hold such office prior to the execution of
such Receipts by the Registrar and their delivery or such officer did not hold
such office at the date of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be necessary to enable the Depositary to perform its
obligations hereunder or as maybe required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange or market upon which American Depositary Shares may be traded or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the underlying Deposited Securities or
otherwise.
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The Receipts shall bear a CUSIP number that is different from any CUSIP
number that was, is or may be assigned to any depositary receipts previously or
subsequently issued pursuant to any other arrangement between the Depositary (or
any other depositary) and the Company which are not Receipts issued hereunder.
Title to a Receipt (and to each American Depositary Share evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of the State of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
deem and treat the Holder thereof as the absolute owner thereof for the purpose
of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes, and the Depositary shall have no obligation or be subject to
any liability under this Deposit Agreement to any holder of a Receipt unless
such holder is the registered Holder thereof.
SECTION 2.02. Deposit of Shares. Subject to the terms and conditions of
this Deposit Agreement, Shares or evidence of rights to receive Shares (other
than Restricted Securities) may be deposited by any person (in the case of the
Company, or any Affiliate, subject to Section 5.07 hereof) including the
Depositary in its individual capacity by delivery thereof to the Custodian,
accompanied by any appropriate instrument or instruments of transfer or
endorsement, in a form satisfactory to such Custodian (in the case of Shares in
registered form) together with (i) all such certifications and payments
(including, without limitation, those referred to in Exhibit B hereto and
amounts in respect of any applicable stamp, transfer or other applicable taxes)
or evidence of such payments (including, without limitation, stamping or
otherwise marking such Shares by way of receipt) as may be required by the
Depositary or such Custodian in accordance with the provisions of this Deposit
Agreement and (ii) if the Depositary so requires, a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of American
Depositary Shares representing the Shares so deposited.
No Shares shall be accepted for deposit unless accompanied by (a) payment
in respect of any applicable taxes or duties and (b) evidence satisfactory to
the Depositary (which may be an opinion of counsel) that any necessary approval
has been granted by, or there has been compliance with the rules and regulations
of, the governmental agency in Venezuela, if any, which is then performing the
function of the regulation of currency exchange.
6
If required by the Depositary, Shares presented for deposit at any time,
whether or not the transfer books of the Company or the Share Registrar are
closed, shall also be accompanied by (1) proper endorsement or duly executed
instruments of transfer in respect of Shares presented for deposit, (2) an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian or its nominee of
any dividend, or right to subscribe for additional Shares, or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of any such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary and (3) if the Shares are registered in the name of the person
on whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to vote such deposited Shares for any and all purposes in the manner
permitted by Venezuelan law until the Shares so deposited are registered in the
name of the Company for the account of the Depositary or its nominee or the
Custodian or its nominee.
At the request, risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive Shares to be deposited,
evidence that Shares have been electronically transferred or that irrevocable
instructions have been given to cause the transfer of such Shares to the account
of the Custodian, together with the other orders, instruments and evidence
herein specified, for the purpose of forwarding such Shares to the Custodian for
deposit hereunder.
Upon each delivery to a Custodian of Shares to be deposited hereunder (or
other Deposited Securities pursuant to Section 4.02, 4.03, 4.05 or 4.11),
together with the other documents above specified, such Custodian shall advise
the Depositary of such deposit, and the Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates,
together with the appropriate instrument or instruments of transfer or
endorsement, duly stamped, to the Company (or the Share Registrar) for transfer
and recordation of the Deposited Securities being deposited in the name of the
Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary, the Custodian or any of their
nominees (on behalf of Holders) at such other place or places as the Depositary
shall determine.
SECTION 2.03. Execution and Delivery of Receipts.Upon receipt by a
Custodian of a deposit of Shares pursuant to Section2.02 hereof, and receipt and
confirmation from the Company or the Share Registrar of such transfer,
7
satisfactory to the Depositary, that any such Deposited Securities have been
recorded as specified above, together with all other required documents, such
Custodian shall notify the Depositary of such deposit and the person or persons
to whom or upon whose written order a Receipt or Receipts are deliverable in
respect thereof and the number of American Depositary Shares to be evidenced
thereby. Such notification shall be made by letter or, at the request, risk and
expense of the person making the deposit, by cable, telex or facsimile
transmission. Upon receiving such notice from such Custodian, or upon the
receipt of Shares by the Depositary, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver at its Principal
Office to or upon the order of the person or persons named in the notice
delivered to the Depositary, a Receipt or Receipts, registered in the name or
names requested by such person or persons and evidencing in the aggregate the
number of American Depositary Shares to which such person or persons are
entitled, but only upon payment to the Depositary of the charges of the
Depositary for making a deposit and the issuance and delivery of such Receipt or
Receipts (as set forth in Section 5.09 and Exhibit B hereto) and in respect of
all taxes (except insofar as already accounted for) and governmental charges and
fees payable in connection with such deposit and the transfer of the Deposited
Securities and the issue of the Receipt or Receipts.
SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts.
The Registrar, subject to the terms and conditions of this Deposit Agreement,
shall register transfers of Receipts on its transfer books, upon any surrender
to the Principal Office, of the Depositary of a Receipt by the Holder thereof in
person or by duly-authorized attorney, properly endorsed or accompanied by
proper instruments of transfer (including signature guarantees in accordance
with standard industry practice and, in the case of any Receipt, the accurate
completion of any endorsements appearing on such Receipt) and duly stamped as
may be required by the laws of the State of New York and of the United States of
America. Subject to the terms and conditions of this Deposit Agreement,
including payment of the fees set forth in Section 5.09 and Exhibit B hereto,
the Depositary shall execute and, if the Depositary's signature is by facsimile,
the Registrar shall manually countersign, a new Receipt or Receipts and deliver
the same to or upon the order of the person entitled thereto evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered.
The Depositary, subject to the terms and conditions of this Deposit
Agreement shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts and upon payment
to the Depositary of the charges set forth in Section 5.09 and in Exhibit B
8
hereto, execute and, if the Depositary's signature is by facsimile, the
Registrar shall manually countersign and deliver, a new Receipt or Receipts for
any authorized number of American Depositary Shares requested, evidencing the
same aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered.
The Depositary may, upon the request or with the approval of the Company,
appoint one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled thereto and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary upon the
request or with the approval of the Company. Each co-transfer agent appointed
under this Section 2.04 (other than the Depositary) shall give notice in writing
to the Company and the Depositary accepting such appointment and agreeing to be
bound by the applicable terms of this Deposit Agreement.
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
Securities. Upon surrender, at the Principal Office of the Depositary, of a
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth at Section 5.09 and
Exhibit B hereof) and (ii) all fees, taxes and governmental charges payable in
connection with such surrender and withdrawal, and subject to the terms and
conditions of this Deposit Agree-ment, the Company's By-laws, Section 7.08
hereof and any other provisions of or governing the Deposited Securities and
other applicable laws, the Holder of such Receipt shall be entitled to delivery,
to him or upon his order, of the Deposited Securities at the time represented by
the American Depositary Shares evidenced by such Receipt. Subject to the last
paragraph of this Section 2.05, such Deposited Securities may be delivered in
registered form or by electronic delivery. Such Deposited Securities may be
delivered by the delivery of (a) certificates in the name of such Holder or as
ordered by him or by certificates properly endorsed or accompanied by proper
instruments of transfer to such Holder or as ordered by him and (b) any other
securities, property and cash to which such Holder is then entitled in respect
of such Receipts to such Holder or as ordered by him. Delivery shall be made
without unreasonable delay at the principal office of the Custodian or, subject
to the last paragraph of this Section 2.05, at the Principal Office of the
Depositary for further delivery to such Holder.
9
A Receipt surrendered for such purposes shall if so required by the
Depositary be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Holder thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order (a "Withdrawal
Order"). Thereupon, the Depositary shall direct the Custodian to deliver at the
designated office of the Custodian, subject to Sections 2.06, 3.01, 3.02, 5.09
and to the other terms and conditions of this Deposit Agreement, to the By-laws
of the Company, and to the provisions of or governing the Deposited Securities
and other applicable laws, now or hereafter in effect, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary if so required by the Depositary as provided above, the Deposited
Securities represented by such Receipt together with any certificate or other
proper documents of or relating to title for the Deposited Securities, or
evidence of the electronic transfer thereof (if available), as the case may be,
to or for the account of such person, except that the Depositary may make
delivery to such person or persons at the Principal Office of the Depositary of
any dividends or distributions with respect to the Deposited Securities
represented by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be recorded in the name
of the Holder surrendering such Receipt, and shall issue and deliver to the
person surrendering such Receipt a new Receipt evidencing American Depositary
Shares representing any remaining fractional Share.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) held in respect of, and
any certificate or certificates and other proper documents of or relating to
title to, the Deposited Securities represented by such Receipt to the Depositary
for delivery at the Principal Office of the Depositary, and for further delivery
to such Holder. Such direction shall be given by letter or, at the request, risk
and expense of such Holder, by cable, telex or facsimile transmission.
10
SECTION 2.06. Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, xxx.Xx a condition precedent to the
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (a) payment from the depositor of Shares or presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable charges as provided in
Section 5.09, or in Exhibit B hereof, (b) the production of proof satisfactory
to it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.01 hereof and (c) compliance with (i) any laws or
governmental regulations relating to Receipts or American Depositary Shares or
to the withdrawal of Deposited Securities and (ii) such reasonable regulations,
if any, as the Depositary and the Company may establish consistent with the
provisions of this Deposit Agreement.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
against the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfers of Receipts generally may be suspended, during any period when the
transfer books of the Company, the Depositary or the Share Registrar are closed
or if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange on which the Receipts or Shares are listed, or under any
provision of this Deposit Agreement or provisions of or governing Deposited
Securities, or any meeting of shareholders of the Company or for any other
reason, subject, in all cases, to Section 7.08 hereof. Notwithstanding any
provision of this Deposit Agreement or the Receipts to the contrary, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended or refused, except as permitted in General Instruction IA(l) to
Form F-6 (as such instruction may be amended from time to time) under the
Securities Act in connection with (i) temporary delays relating to the deposit
of Shares in connection with voting at a shareholders' meeting, or the payment
of dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares or other Deposited Securities
required to be registered under the provisions of the securities Act, unless a
11
registration statement is in effect as to such Shares or other Deposited
Securities, or any Shares or Deposited Securities the deposit of which would
violate any provisions of the By-laws of the Company. The Depositary shall
comply with written instructions of the Company not to accept for deposit under
this Deposit Agreement Shares identified in such instructions at such times and
under such circumstances as may be reasonably specified in such instructions in
order to facilitate the Company's compliance with securities laws of the United
States and Venezuela.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange and substitution for such mutilated Receipt upon
cancellation thereof, or (b) in lieu of and in substitution for such destroyed,
lost, or stolen Receipt, after the Holder thereof (i) has filed with the
Depositary a written request for such exchange and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) satisfactory to the Depository as may be required by the Depositary to
save it and any of its agents harmless, and (iii) has satisfied any other
reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Shares for deposit or any Holder may be required from time to
time to file such proof of citizenship or residence, taxpayer status, payment of
all applicable taxes or other governmental charges, exchange control approval,
compliance with applicable laws and the terms of this Deposit Agreement or other
information (or, in the ease of Shares in registered form presented for deposit,
such information relating to the registration on the books of the Company or of
the appointed agent of the Company for the registration and transfer of Shares),
to execute such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper or as the Company may reasonably
12
require by written request to the Depositary consistent with its obligations
hereunder. The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed to the Depositary,
the Registrar and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval which it receives, and (ii) any other information
or documents which the Company may reasonably request and which the Depositary
shall request and receive from the Holder or any person presenting Shares for
deposit.
SECTION 3.02. Liability of Holder for Taxes and Other Charges. If any tax
or other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities represented by the American Depositary Shares evidenced
by such Receipt or any distribution thereon, such tax or other governmental
charge shall be payable by the Holder of such Receipt to the Depositary. The
Depositary may refuse to effect any registration, registration of transfer of
all or part of such Receipt or to issue any new Receipt or Receipts or to permit
any deposit or withdrawal of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt until such payment is made, and the
Company and the Depositary may withhold or deduct from any dividends or other
distributions in respect of the Deposited Securities, or may sell for the
account of the Holder thereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge, the Holder of such Receipt
remaining liable for any deficiency.
SECTION 3.03. Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and the certificates therefor are validly
issued and outstanding, fully paid and non-assessable, that all preemptive
rights, if any, with respect to such Shares have been validly waived or
exercised and that each such person making such deposit is duly authorized so to
do. Each such person shall also be deemed to represent that the Shares presented
for deposit are not, and the American Depositary Shares issuable upon such
deposit will not be, Restricted Securities. Such representations and warranties
shall survive the deposit and withdrawal of Shares and the issuance and
cancellation of Receipts in respect thereof.
13
SECTION 3.04. Compliance with Information Requests. Notwithstanding any
other provision of this Agreement, each Holder agrees to comply with requests
from the Company pursuant to Venezuelan law, the rules and requirements of the
Bolsa de Valores de Caracas, Bolsa de Valores de Maracaibo and any other stock
exchange on which the Shares are, or will be, registered, traded or listed or
the By-laws of the Company, which are made to provide information, inter alia,
as to the capacity in which such Holder owns Receipts (and Shares as the case
may be) and regarding the identity of any other person interested in such
Receipts and the nature of such interest and various other matters, whether or
not they are Holders at the time of such request. The Depositary agrees to use
its reasonable efforts to comply, at the Company's expense, with written
instructions received from the Company in a timely manner requesting that the
Depositary forward any such request from the Company to the Holder and to
forward to the Company any such responses to such requests received by the
Depositary.
SECTION 3.05. Ownership Restrictions. The Company may restrict transfers
of the Shares where such transfer might result in ownership of Shares exceeding
limits imposed by applicable law or the By-laws of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of the American
Depositary Shares where such transfer may result in the total number of Shares
represented by the American Depositary Shares owned by a single Holder to exceed
any such limits. The Company may, in its sole discretion, instruct the
Depositary to take action with respect to the ownership interest of any Holder
in excess of the limitation set forth in the preceding sentence, including but
not limited to a mandatory sale or disposition on behalf of a Holder of the
Shares represented by the American Depositary Shares held by such Holder in
excess of such limitations, if and to the extent such disposition is permitted
by applicable law and the By-laws of the Company.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney. Each Holder and Beneficial Owner, upon
acceptance of American Depositary Share(s) represented by a Receipt issued in
accordance with the terms hereof, hereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities, to adopt any and all procedures necessary to comply
with applicable law, including, but not limited to, those set forth in this
Article IV, and to take such further steps or action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
this Deposit Agreement.
14
SECTION 4.02. Cash Distributions. Whenever the Depositary receives any
cash dividend or other cash distribution on any Deposited Securities, the
Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the reasonable judgment of the Depositary, pursuant to
Section 4.08 hereof, be converted on a reasonable basis into Dollars
transferable to the United States, and subject to the Deposit Agreement,
promptly convert or cause to be converted such dividend or distribution into
Dollars and will distribute promptly the amount thus received (net of fees of,
and expenses incurred by, the Depositary) to the Holders entitled thereto as of
the record date fixed pursuant to Section 4.08 hereof, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively. The Depositary shall 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 shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of Receipts then
outstanding. If the Company or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company or the Depositary (as the
case may be) to the relevant governmental authority. The Depositary shall
forward to the Company such information from its records and those of the
Custodian as the Company may request to enable the Company to file necessary
reports with governmental authorities or agencies.
SECTION 4.03. Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with and registered in the
name of the Custodian and thereupon the Depositary may, subject to Section 5.07
hereof, either distribute to the Holders entitled thereto, as of the record date
fixed pursuant to Section 4.09 hereof, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts for American Depositary Shares, which
represents in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of this Deposit Agreement, including, without
limitation, Sections 2.02, 2.03, 4.04, 5.07 and 5.09 hereof; in lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the number of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions described in Section 4.02 as in the ease of cash distributions or
additional Receipts are not so distributed, each American Depositary Share shall
15
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if after the Company, in the fulfillment of its
obligation under Section 5.07 hereof, has furnished an opinion of U.S. counsel
determining that Shares must be registered under the Securities Act or other
laws in order to be distributed to Holders, the Depositary may dispose of all or
a portion of such property (including Shares and rights to subscribe therefor)
in such amounts and in such manner, including by public or private sale in any
commercial reasonable manner, as the Depositary deems necessary and practicable
to pay any such taxes or charges, or effect the distribution of unregistered
Shares, and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to Holders entitled thereto in
proportion to the number of American Depositary Shares held by them respectively
and the Depositary shall distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
SECTION 4.04. Rights. In the event that the Company shall offer or cause
to be offered to the holders of any Deposited Securities any rights to subscribe
for additional Shares or any rights of any other nature, the Depositary may,
after consultation with the Company, and, if requested in writing by the
Company, shall, take action, subject to the terms of this Deposit Agreement, as
follows:
(a) if at the time of the offering of any rights by the Company,
the Depositary determines in its reasonable discretion that it
is lawful and feasible to make such rights available to all or
certain Holders or Beneficial Owners but not to others, by
means of warrants or otherwise, the Depositary may distribute
warrants or other instruments therefor in such form as it may
determine, to the Holders entitled thereto, in proportion to
the number of American Depositary Shares representing such
Deposited Securities held by them respectively, or employ such
other method as it may deem feasible in order to facilitate
the exercise, sale or transfer of rights or the Securities
obtainable upon exercise of such rights, by such Holders or
Beneficial owners; or
(b) if at the time of the offering of any rights, the Depositary
determines in its discretion that it is not lawful or not
feasible to make such rights available to certain Holders or
Beneficial Owners by means of warrants or otherwise, or if the
16
rights represented by such warrants or such other instruments
are not exercised and appear to be about to lapse, the
Depositary may, in its discretion, sell such rights or such
warrants or other instruments at public or private sale, in a
riskless principal capacity at such place or places and upon
such terms as it may deem proper, and allocate the 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 Receipt or Receipts, or otherwise, and
distribute such net proceeds so allocated to the extent
practicable as in the case of a distribution of cash pursuant
to Section 4.02 hereof. The Depositary shall not be
responsible for (1) any failure to determine that it may be
lawful or feasible to make such rights available to Holders in
general or any Holder or Holders in particular, (ii) any
foreign exchange exposure or loss incurred in connection with
such sale, or (1ii) any liability to the purchaser of such
rights, warrants or other instruments except in those cases
where the Depositary makes representations or warranties in
connection with the sale of such rights, warrants or other
instruments.
If the Depositary does not receive such written request from the Company,
the Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of United States and Venezuelan counsel, as applicable, reasonably
satisfactory to the Depositary, have discretion as to the procedure to be
followed (i) in making such rights available to the Holders, or (ii) in
disposing of such rights on behalf of such Holders and distributing the net
proceeds available in dollars to such Holders as in the ease of a distribution
of cash pursuant to Section 4.02 hereof, or (iii) in allowing such rights to
lapse in the event such rights may not be made available to Holders or be
disposed of and the net proceeds thereof made available to Holders.
Notwithstanding anything to the contrary in this Section 4.04, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not offer such rights
to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect, or (ii) unless the Company
17
furnishes the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, satisfactory to the Depositary or other evidence
satisfactory to the Depositary to the effect that the offering and sale of such
securities to the Holders of such Receipts are exempt from or do not require
registration under the provisions of the Securities Act or any other applicable
laws. In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any 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 the Holders of
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges, the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to Holders entitled thereto in proportion to the number of
American Depositary Shares held by them respectively and the Depositary shall
distribute any unsold balance of such property in accordance with the provisions
of this Deposit Agreement.
References in this Section 4.04 to "Holders" are to Holders as of the
record date fixed pursuant to Section 4.08.
SECTION 4.05. Distributions Other Than Cash, Shares or Rights. Whenever
the Custodian shall receive any distribution other than cash, Shares or rights
upon any Deposited Securities, the Depositary shall, after consultation with the
Company, and after obtaining, at the Company's expense, opinion(s) of United
States and Venezuelan counsel, as applicable, satisfactory to the Depositary
that the proposed distribution does not violate any applicable laws or
regulations, cause the securities or property so received to be distributed to
the Holders entitled thereto, as of the record date fixed pursuant to Section
4.09 hereof, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution, net of expenses of the Depositary; provided, however, that, if in
the opinion of the Depositary or its counsel, 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
18
without limitation any requirement (i) that the Company, the Depositary or the
Custodian withhold an amount on account of taxes or other governmental charges
or (ii) that under applicable securities or exchange control regulations or law
such securities must be registered under the Securities Act or other law in
order to be distributed to Holders), the Depositary deems all or any portion
such distribution not to be feasible, the Depositary may obtain opinion(s) of
United States and Venezuelan counsel, as applicable, as to an equitable and
practicable method of effecting such distribution or paying such taxes or
governmental charges and may rely on such advice, which method may include, but
not be limited to, the sale (at public or private sale) of the securities or
property thus received, or any part thereof, and the distribution of the net
proceeds of any such sale (net of taxes, fees and expenses of the Depositary set
forth in Section 5.09 or Exhibit B hereof) by the Depositary to the Holders
entitled thereto as in the case of a distribution received in cash.
SECTION 4.06. Redemption. In the event that the Company exercises any
right of redemption in respect of Shares, and the Company has issued a notice to
the Depositary as set forth below, the Depositary will redeem, from the amounts
received by it in respect of such redemption, that number of American Depositary
Shares of Shares with respect to which such right of redemption is exercised
which represents the number of Shares deposited hereunder so redeemed. Subject
to Sections 4.02, 4.03 and 4.08 hereof (to the extent applicable), the
redemption price per American Depositary Share to be redeemed will be equal to
the per share amount received by the Depositary upon the redemption of the
Shares represented by such American Depositary Share multiplied by the number of
Shares (or the fraction of a Share) represented by each such American Depositary
Share. If less than all of the outstanding Shares are redeemed, the American
Depositary Shares to be redeemed will be selected by lot or redeemed pro rata as
may be determined by the Depositary. Notice from the Company of its exercise of
its rights of redemption in respect of the Shares must be given to the
Depositary not less than 30 days nor more than 60 days prior to the date fixed
for redemption. Within seven (7) business days after receiving such notice from
the Company, the Depositary will deliver such notice to all Holders.
SECTION 4.07. Conversion of Foreign Currency. Whenever the Depositary or
the Custodian shall receive foreign currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a reasonable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into dollars distributable to the Holders
entitled thereto and transferable to the United States, the Depositary shall
convert or cause to be converted, by sale or in any other manner that it may
determine, such foreign currency into dollars, and shall transfer such dollars
19
(net of any of its reasonable and customary expenses incurred in such conversion
and any expenses incurred on behalf of the Holder in complying with currency
exchange control or other governmental requirements) to the Holders entitled
thereto or, if the Depositary shall have distributed any warrants or other
instruments that entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may 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 shall have discretion and authority
to file such application for approval or license, if any, as it may deem
desirable. In no event, however, shall the Depositary be obligated to make such
a filing.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into dollars distributable to the Holders entitled thereto and
transferable to the United States, or if any approval or license of any
government or authority or agency thereof that is required for such conversion
and/or transfer is denied or in the opinion of the Depositary is not obtainable
at a reasonable cost or 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) to,
or in its discretion may hold such foreign currency (without liability for
interest thereon) for the respective accounts of, the Holders entitled to
receive the same.
If any such conversion of foreign currency, in whole or in part, is not
practicable for distribution to certain Holders entitled thereto, the Depositary
may in its discretion make such conversion and distribution in dollars to the
extent practicable to the Holders entitled thereto and may distribute the
balance of the foreign currency received by the Depositary to, or bold such
balance (without liability for interest thereon) for the account of, the Holders
for whom such conversion and distribution is not practicable.
SECTION 4.08. Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
Holders of Deposited Securities entitled to receive any cash dividend or other
cash distribution or any distribution other than cash, or any rights to be
20
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of Holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall, after consultation with the Company, ,fix a record date (which, to the
extent practicable, shall be the same as any such record date fixed by the
Company) for the determination of the Holders of Receipts who shall be entitled
to receive such dividend, distribution rights or the net proceeds of the sale
thereof, to give instructions for the exercise of voting rights at any such
meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each American
Depositary Share. Subject to the provisions of Section 4.02 through 4.08 and to
the other terms and conditions of this Deposit Agreement, the. Holders of
Receipts at the close of business on such record date shall 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 in
proportion to the number of American Depositary Shares held by them
respectively, or to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
SECTION 4.09. Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix a record date in respect of such
meeting for the giving of instructions for voting or such consent or proxy. The
Depositary shall, if requested in writing in a timely manner (which notice shall
have been received by the Depositary at least 20 days prior to such vote or
meeting) by the Company and at the Company's expense, and shall mail to Holders
a notice containing (a) notice of such meeting, (b) a statement that the Holders
at the close of business on the specified record date will be entitled, subject
to any applicable law, the By-laws of the Company and the provisions of or
governing Deposited Securities (which provisions, if any, shall be summarized in
pertinent part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's American Depositary Shares, and (c) a
brief statement as to the manner in which such instructions may be given. If the
Depositary receives a request less than 20 days prior to such vote or meeting,
the Depositary will make its best efforts to notify Holders. Upon the written
request of a Holder of American Depositary Shares evidenced by a Receipt on such
21
record date received on or before the date established by the Depositary for
such purpose, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law and the provisions of the By-laws of the Company
and the provisions of the Deposited Securities, to vote or cause the Custodian
to vote the Shares and/or other Deposited Securities represented by American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders. Shares or
other Deposited Securities represented by American Depositary Shares for which
no specific voting instructions are received by the Depositary from the Holder
shall not be voted.
SECTION 4.10. Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or .any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation, liquidation, receivership, bankruptcy
or sale of all or substantially all the assets of the Company or to which it is
a party, any securities which shall be received by the Depositary or a Custodian
in exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall be treated as new Deposited Securities under
this Deposit Agreement, and the Receipts shall, subject to the provisions of
this Deposit Agreement and applicable law, evidence American Depositary Shares
representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, and with
the Company's approval, shall if the Company requests, subject to receipt of an
22
opinion of Company's counsel satisfactory to the Depositary that such action is
not in violation of any applicable laws or regulations, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales for the account of
the Holders otherwise entitled to such securities 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. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or any
Holder or Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such securities.
SECTION 4.11. Available Information. The Deposit Agreement, the provisions
of or governing the Deposited Securities and any written communication from the
Company, which are both received by the Custodian or its nominee as holder of
Deposited Securities and made generally available to the Holders of Deposited
Securities, are available for inspection by the Holders at the offices of the
Depositary and the Custodian and at the offices of the Depositary and the
Custodian and the transfer office. The Company has been added to the list of
foreign private issuers that claim exemption from registration pursuant to Rule
12g3-2(b) under the Exchange Act and furnishes certain information to the
Commission in accordance therewith. Such information may be inspected and copied
at the public reference facilities maintained by the Commission located at the
date hereof at Judiciary Plaza, 450 Fifth Street N.W. (Room 1024), Xxxxxxxxxx,
X.X. 00000.
SECTION 4.12. Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
send to Holders copies of such reports when furnished by the Company to the
Custodian pursuant to Section 5.06.
The Depositary shall furnish to the Commission semiannually, so long as
required by the Commission, beginning on or before six months after the
effective date of any registration statement filed with the Commission under the
Securities Act relating to the American Depositary Share and Receipts, (a) the
following information in tabular form:
23
(1) The number of American Depositary Shares evidenced by Receipts
issued during the period covered by the report;
(2) The number of American Depositary Shares evidenced by Receipts
retired during the period covered by the report;
(3) The total amount of American Depositary Shares evidenced by Receipts
remaining outstanding at the end of the six-month period;
(4) The total number of Holders of Receipts at the end of the six-month
period;
and (b) the name of each dealer known to the Depositary depositing Shares
against issuance of Receipts during the period covered by the report. In
connection with such reports relating to the Receipts, the Company and the
Depositary shall each furnish to the other the name of each such dealer known to
it who (1) has deposited Shares against the issuance of Receipts relating to
each reporting period (including the six months prior to filing such
registration statement), (2) proposes to deposit Shares against the issuance of
Receipts (as to each such person indicating the number of such Shares proposed
to be deposited to the extent known), or (3) assisted or participated in the
creation of any plan for the issuance of Receipts or the selection of Shares to
be deposited. As used herein, the term "dealer" shall have the meaning assigned
to it in Section 3(a) (5) of the Exchange Act.
SECTION 4.13. List of Holders as Registered on the Books of the
Depositary. Promptly upon written request by the Company, the Depositary shall
furnish to it a list, as of a recent date within seven (7) days from receipt of
such request, of the names, addresses and holdings of American Depositary Shares
of all Holders. The Company shall have the right to inspect transfer records of
the Depositary and its agents in the Register, take copies thereof and require
the Depositary and its agents to supply copies of such portions of such records,
at the Company's expense, as the Company may request.
SECTION 4.14. Taxation. The Depositary or the Custodian will forward to
the Company or its agents 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, and the Depositary, the Custodian or
the Company or its agents may file such reports as are necessary to reduce or
eliminate applicable taxes on distributions in respect of Deposited Securities
24
on dividends and other benefits under applicable tax treaties for the Holders.
In accordance with instructions from the Company and to the extent practicable,
the Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties with respect to dividends and other
distributions on the Deposited Securities. Holders of American Depositary Shares
evidenced by Receipts representing Deposited Securities may be required from
time to time to file such proof of taxpayer status or residence, to execute such
certificates and to make such representations and warranties, or to provide any
other information or documents as the Depositary may deem necessary or proper to
fulfill the Depositary's obligations under applicable law. Holders shall provide
the Depositary, in a timely manner, with copies, or originals if necessary and
appropriate, of any such proofs of residence, taxpayer status, beneficial
ownership and any other information or documents which the Depositary may
reasonably request. The Holder shall indemnify the Depositary, the Company, the
Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained for such Holder pursuant to this Section
4.14.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with. Holders of such Receipts in the interest of a business or
object other than the business of the Company or a matter related to this
Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.08
hereof.
25
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, with the written
approval of the Company, appoint a Registrar or one or more co-registrars for
registration of Receipts and transfers, combinations and split-ups, and to
countersign such Receipts in accordance with any requirements of such exchanges
or systems. Such Registrar or co-registrars may be removed and a substitute or
substitutes appointed by the Depositary upon the written request or with the
written approval of the Company.
SECTION 5.02. Prevention or Delay in Performance.Neither the Depositary
nor the Company nor any of their respective controlling person, directors,
employees, agents or affiliates shall incur any liability to any Holder or any
other person, if, by reason of any provision of any present or future law or
regulation of the United States, Venezuela or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the By-laws of the Company or governing
any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary, its controlling persons or its
agents or the Company or its agents shall be prevented or forbidden from or
subjected to any civil or criminal penalty or restraint on account of, or
delayed in, doing or performing any act or thing which by the terms of this
Deposit Agreement it is provided shall be done or performed; nor shall the
Depositary, its controlling persons or its agents nor the Company, its
controlling person or its agents incur any liability to any Holder or other
person by reason of any non-performance or delay, caused as aforesaid, in
performance of any act or thing which by the terms of this 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 this Deposit Agreement or
in the By-laws of the Company or provisions of or governing Deposited
Securities. Where, by the terms of a distribution pursuant to Section 4.02,
4.03, or 4.04 of this Deposit Agreement, or an offering or distribution pursuant
to Section 4.05, 4.11 or 5.07 of this Deposit Agreement or in the By-laws
equivalent instrument of the Company, or for any other reason, such distribution
or offering may not be made available to Holders, or some of them, 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
shall not make such distribution or offering, and shall allow any such rights,
if applicable, to lapse.
26
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company. Each of the Company and its agents, directors, officers or employees,
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to Holders or other persons, except that each of the
Company and its agents, directors, officers or employees, agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith. No implied covenants or obligations shall be read into this
Deposit Agreement against the Company.
Each of the Depositary and its agents, directors, officers or employees,
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to Holders or other persons (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that each of the Depositary and its agents, directors,
officers and employees, agrees to perform its obligations specifically set forth
in this Deposit Agreement without negligence or bad faith.
The Depositary undertakes not to issue any Receipt other than to evidence
American Depositary Shares representing Deposited Securities then on deposit
with the Custodian. The Depositary also undertakes not to lend Deposited
Securities held by it as Depositary.
Without limitation of the foregoing, neither the Depositary, its
controlling persons, nor any of its agents, directors, officers or employees,
nor the Company its controlling persons nor any of its agents, directors,
officers or employees, shall be (a) 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 Receipts, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished as
often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary), or (b) liable for any action or inaction by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, its controlling persons, its agents, directors, officers and
employees, any Custodian and the Company, its controlling persons and its
agents, directors, officers and employees may rely and shall be protected in
acting upon any written notice, request or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
27
The Depositary and its agents, directors, officers and employees shall not
be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is without negligence or
bad faith and in accordance with the terms of this Deposit Agreement.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by 60 days' written notice of its election to do so delivered to the
Company, such resignation to be effective upon the appointment by the Company of
a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by 60 days'
written notice of such removal, which notice shall be effective upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall 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. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall, (1) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
28
SECTION 5.05. The Custodian. The Depositary, after consultation with the
Company, may from time to time appoint one or more agents to act for it as
custodian hereunder. The Depositary has initially appointed Citibank, N.A. as
Custodian and agent of the, Depositary for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares and the American Depositary Shares and Receipts with respect to which the
Custodian acts as custodian and shall be responsible solely to it. Any Custodian
may resign and be discharged from its duties hereunder with respect to any
Deposited Securities by notice of such resignation delivered to the Depositary
at least 30 days prior to the date on which such resignation is to become
effective. If, upon the effectiveness of such resignation, there should be no
custodian acting hereunder, the Depositary shall, promptly after receiving such
notice and in consultation with the Company, appoint a substitute custodian that
is organized under the laws of Venezuela with respect to the Deposited
Securities with respect to which the Custodian has so resigned which shall
thereafter be the Custodian hereunder. Whenever the Depositary determines, in
its discretion, that it is in the best interest of the Holders to do so, it may
appoint an additional custodian with respect to any Deposited Securities, or
discharge the Custodian with respect to any Deposited Securities and appoint a
substitute custodian, which shall thereafter be Custodian hereunder with respect
to the Deposited Securities. Forthwith upon its appointment, each such
substitute or additional custodian shall deliver to the Depositary and the
Company an acceptance of such appointment and agreement to be bound by 'the
terms hereof satisfactory in form and substance to the Depositary and the
Company. Upon demand of the Depositary, any Custodian shall deliver such of the
Deposited Securities held by it together with all records maintained by it as
Custodian with respect to such Deposited Securities as are requested of it to
any other Custodian or such substitute or additional custodian or custodians,
and each such substitute or additional custodian shall deliver to the Depositary
and the Company forthwith upon its appointment, an acceptance of such
appointment and agreement to be bound by the terms hereof, satisfactory in form
and substance to the Depositary and the Company. Immediately upon any such
change, the Depositary shall give notice thereof in writing to all Holders of
Receipts with respect to which such appointment has been made, each other
Custodian and the Company.
Upon the appointment of any successor depositary with respect to any
Deposited Securities and the corresponding Shares, American Depositary Shares
and Receipts hereunder, any Custodian then acting hereunder with respect to such
Deposited Securities shall forthwith become, without any further act or writing,
the agent hereunder of such successor depositary and the appointment of such
successor depositary shall in no way impair the authority of each Custodian
29
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.06. Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the By-laws of the Company that may be relevant or
pertain to such notice of meeting or be the subject of a vote thereat.
The Depositary, at the Company's expense, will arrange for the prompt
transmittal by the Custodian to the Depositary of such notices, and any other
reports and communications which are both (a) received by the Depositary, the
Custodian or the nominees of either as the holder of the Deposited Securities
and (b) made generally available by the Company to holders of its Shares or
other Deposited Securities, and arrange for the mailing, at the Company's
expense, of copies thereof to all Holders or, at the request of the Company,
make such notices, reports and other communications available to all Holders on
a basis similar to that for holders of Shares or other Deposited Securities or
on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange requirement. The
Depositary may, at the Company's expense, but shall not be required to, obtain
English translations or adequate English summaries of any notices, such reports
and communications that are not furnished to the Depositary in English. The
Company has delivered to the Depositary and the Custodian a copy of the
Company's By-laws of or governing the Shares and any other Deposited Securities
issued by the Company or any Affiliate of the Company in connection with such
Shares, and promptly upon any amendment thereto or change therein, the Company
shall deliver to the Depositary and the Custodian a copy of such amendment
thereto or change therein. The Depositary may rely upon such copy for all
purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make such copy,
summary and any other notices, reports and other communications issued by the
Company in connection therewith available for inspection by the Holders of the
Receipts evidencing the Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
30
SECTION 5.07. Issuance of Additional Shares, xxx.Xx the event that the
Company or any Affiliate issues as a dividend or distribution (a) additional
Shares, (b) rights to subscribe for Shares or other Deposited Securities, (c)
securities convertible or exchangeable into Shares, or (d) rights to subscribe
for securities convertible or exchangeable into Shares, the Company will
promptly furnish to the Depositary a written opinion from United States and
Venezuelan counsel for the Company, which counsel shall be reasonably
satisfactory to the Depositary, stating whether or not the circumstances of such
issue require a registration statement under the Securities Act or applicable
laws of Venezuela to be in effect prior to the delivery of the Receipts to be
issued in connection with such securities or the issuance of such rights to the
Holders entitled thereto; provided, however, that no such opinion shall be
required in the event of an issuance of Shares as a bonus, share split or
similar event. The Company may elect not to furnish the Depositary such an
opinion and, if no such opinion is furnished to the Depositary, the Depositary
shall not make such distribution available to the Holders but shall dispose of
the Securities being issued or distributed by the Company and distribute any net
proceeds thereof to the Holders entitled thereto. If in the opinion of such
counsel a registration statement is required, such counsel shall furnish to the
Depositary a written opinion as to whether such registration statement is in
effect.
The Company agrees that it will obtain legal advice prior to the issuance
for cash of (1) additional Shares, (2) rights to subscribe for Shares or other
Deposited Securities, (3) securities convertible into or exchangeable for
Shares, or (4) rights to subscribe for securities convertible into or
exchangeable for Shares, as to whether such issuances would require a
registration statement under the Securities Act covering such securities to be
in effect. If, being so advised by counsel, the Company determines that an
issuance of such securities would be required to be registered under the
Securities Act, the Company will register such issuance to the extent necessary,
alter the terms of the issuance so that registration under the Securities Act is
not required, or direct the Depositary to take specific measures with respect to
the acceptance for deposit of Shares to prevent such issuance from being made in
violation of the registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any
Affiliate will at any time (i) deposit any Shares or other Deposited Securities,
either upon original issuance or upon a sale of Shares or other Deposited
31
Securities previously issued and reacquired by the Company or by any such
Affiliate, unless such transaction is registered under the Securities Act, or is
exempt from registration thereunder as confirmed by a written opinion from
counsel for the Company in the United States, which counsel shall be reasonably
satisfactory to the Depositary or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities except under circumstances
complying in all respects with the Securities Act.
SECTION 5.08. Indemnification. The Company agrees to indemnify the
Depositary, the Custodian and any of their respective directors, employees,
agents and Affiliates against, and hold each of them harmless from, any loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) incurred by the
Depositary or the Custodian that may arise (a) out of or in connection with any
actions performed or omitted to be performed in connection with this Deposit
Agreement and the Receipts as the same may be amended, modified or supplemented
from time to time, in any such case (i) by the Depositary, the Custodian or any
of their respective directors, employees, agents and Affiliates, except to the
extent such loss, liability, tax, charge or expense is due to negligence or bad
faith of any of them, or (ii) by the Company or any of its directors, employees,
agents and Affiliates, or (b) out of delivery by the Depositary on behalf of the
Company of information regarding the Company in connection with this Deposit
Agreement any offer or sale of Receipts, American Depositary Shares, Shares or
other Deposited Securities or any prospectus or registration statement under the
Securities Act of 1933 in respect thereof.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release Transaction (as
defined in Section 5.10).
The Depositary agrees to indemnify the Company and its directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any loss, liability, tax, charge or expense of any kind whatsoever (including,
but not limited to, the reasonable fees and expenses of counsel) which may arise
(a) out of or in connection with issuance, transfer, deposit or withdrawal of
Receipts, American Depositary Shares, Shares, or other Deposited Securities, as
the case maybe, or any offering documents in respect thereof in connection with
its role as Depositary, or (b) out of any actions performed or omitted to be
performed by the Depositary in connection with this Deposit Agreement and the
Receipts or out of delivery by the Company on behalf of the Depositary of
information regarding the Depositary in connection with this Deposit Agreement,
the Receipts, the American Depositary Shares, the Shares, or any Deposited
Securities, as the same may be amended from time to time, in any such case due
to the negligence or bad faith of the Depositary.
32
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Section 5.08) and shall
consult in good faith with the indemnifying person as to the conduct of the
defense of such action or claim, which defense shall be reasonable in the
circumstances. No indemnified person shall compromise or settle any action or
claim without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
SECTION 5.09. Charges of Depositary. The Company agrees to pay the
expenses, tees or charges of the Depositary and the Registrar, co-transfer agent
and co-registrar, and any other agent of the Depositary appointed under this
Deposit Agreement, as indicated in this Section 5.09 and Exhibit B hereto to be
paid by the Company, or in accordance with the written agreements between the
Company and the Depositary from time to time, in each case other than the
following items which are payable by Holders: (1) the charges of the Depositary
for the execution and delivery of Receipts pursuant to Section 2.03, and the
surrender of Receipts pursuant to Section 2.05, and for the making of
distributions pursuant to Section 4.02 through 4.07 hereof, (2) taxes and other
governmental charges, (3) such registration fees as may from time to time be in
effect for the registration of transfers, if any, of Shares generally on the
share register of the Company (or any appointed agent of the Company for
transfer and registration of Shares which may be the Share Registrar) and
accordingly applicable to transfers of Shares to the name of the Depositary, a
Custodian or their nominees or the person who makes a withdrawal of Shares, on
the making of deposits or withdrawals pursuant to Sections 2.02 or 2.05, (4)
such cable, telex, facsimile transmission and delivery expenses as are expressly
provided in this Deposit Agreement to be at the expense of persons depositing
Shares or Holders, (5) such expenses as are incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.08 (including, without
limitation, expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control restrictions), and (6) 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
33
regulations) in delivery of Deposited Securities. Any other charges and expenses
of the Depositary hereunder will be paid by the Company after consultation and
agreement in writing between the Depositary and the Company as to the amount and
nature of such charges and expenses. Responsibility for payment of such charges
may at any time and from time to time be changed by agreement between the
Company and the Depositary. Unless otherwise agreed, the Depositary shall
present its statement for such expenses and fees or charges to the Company once
every three months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement and, as to any Depositary, the resignation or removal of such
Depositary as described in Section 5.04 for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
SECTION 5.10. Certain Rights of the Depositary; Limitations. Subject to
the further terms and provisions of this Section 5.10, the Depositary and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares furnished on behalf of the holder thereof. In its
capacity as Depositary, the Depositary shall not lend Shares or Receipts;
provided, however, that the Depositary may (i) issue Receipts prior to the
receipt of Shares pursuant to Section 2.02 and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.05, including
Receipts which were issued under (i) above but for which Shares may not have
been received (each such transaction a "Pre-Release Transaction"). The
Depositary may receive Receipts in lieu of Shares under (i) above and receive
Shares in lieu of Receipts under (ii) above. Each such Pre-Release Transaction
will be (a) accompanied by or subject to a written agreement whereby the person
or entity (the "Applicant") to whom Receipts or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or Receipts that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or Receipts in its records and to hold such Shares or
Receipts in trust for the Depositary until such Shares or Receipts are delivered
to the Depositary or the Custodian, (y) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such Shares or Receipts and (z)
34
agrees to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized (marked to market daily) with
cash, United States government securities or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of Receipts and Shares involved in such Pre-Release
Transactions at anyone time to thirty percent (30%) of the Receipts outstanding
(without giving effect to Receipts outstanding under (i) above), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may also set
limits with respect to the number of Receipts and Shares involved in Pre-Release
Transactions with anyone person on a case by case basis as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holder.
SECTION 5.11. List of Restricted securities Owners. Upon each issuance by
the Company of any securities that are Restricted Securities, the Company shall
provide the Depositary a list setting forth, to the actual knowledge of the
Company, those persons or entities who beneficially acquired Restricted
Securities. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on any such list and shall not be liable for
any action or omission made in reliance thereon.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment, Supplement. The form of the Receipts in respect
of the Shares and any provisions of this Deposit Agreement may at any time and
from time to time be amended or supplemented by written agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable without the consent of the Holders. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges of the
Depositary for transfer and registration fees, fees in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise prejudice any substantial
existing right of Holders or Beneficial owners, shall not, however, become
effective as to outstanding Receipts until the expiration of 60 days after
35
notice of such amendment or supplements shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the American Depositary Shares to be registered on
Form F-6 under the Securities Act or (b) the American Depositary Shares or
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended and supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of 'the Deposit Agreement to ensure
compliance therewith, the Company end the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
SECTION 6.02. Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 60 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (1) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 60 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
36
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.05 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary shall
suspend the distribution of dividends to the Holders' thereof, and shall not
give any further notices or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in Section
2.05, together with any dividends or other distributions received with respect
thereto and the net proceeds of the sale of any rights or other property, in
exchange for Receipts surrendered to the Depositary (after deducting, or
charging, as the case may be, in each case the charges of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder in accordance
with the terms and conditions of this Deposit Agreement and any applicable taxes
or governmental charges or assessments). At any time after the expiration of six
months from the date of termination of this Deposit Agreement, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated escrow account, without liability for
interest for the pro rata benefit of the Holders of Receipts whose Receipts have
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement with respect to
the Receipts and the Shares, Deposited Securities and American Depositary
Shares, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of this Deposit Agreement as to Receipts, the Company shall be discharged from
all obligations under this Deposit Agreement as to the Receipts and the Shares,
Deposited Securities and American Depositary Shares except for its obligations
to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such Counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and each Custodian and
shall be open to inspection by any Holder during business hours.
SECTION 7.02. No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person.
37
SECTION 7.03. Severability. In case anyone or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time shall be parties to the
Deposit Agreement and shall be bound by all of the terms and conditions thereof
and of any Receipt by acceptance thereof or any beneficial interest therein.
Each Holder and each Beneficial Owner, upon acceptance of any Receipt or
any beneficial interest therein, thereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all steps or action provided for or contemplated herein with respect to
the Deposited Securities and to take such further steps or action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement.
SECTION 7.05. Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Manufacturas de Papel, C.A. (MANPA), S.A.C.A. AV. Xxxxxxxxx xx
Xxxxxxx con calle El Parque, Torre Country Club, piso 11, Chacaito, Caracas
1050, Venezuela, Attention: Xx. Xxxx Xxxxxxx Xxxxxx-Corporate Vice-President of
Finance, or to any other address which the Company may specify in writing to the
Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. Attention:
ADR Department, or to any other address which the Depositary may specify in
writing to the Company.
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., Carmelitas a Xxxxxxxxxx, Edif. Xxxxxxxx, Xxxxxxx 0000-X, Xxxxxxxxx,
Attention: Xxxx Xxxxx, Vice-President or to any other address which the
Custodian may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
38
transmission, confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the transfer books for Receipts of the Depositary,
or, if such Holder shall have filed with the Depositary a written request that
notices intended for such Holder be mailed to some other address, at the address
specified in such request. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.06. Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the
internal laws (and not the law of conflicts) of the State of New York. Except as
set forth in the following paragraph of this Section 7.06, the Company and the
Depositary agree that the federal or state courts in the State of New York shall
have jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection with this
Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. The Company hereby irrevocably
designates, appoints and empowers CT Corporation System (the "Agent") now at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent to receive and
accept for and on its behalf, and on behalf of its properties, assets and
revenues, service by mail of any and all legal process, summons, notices and
documents that may be served in any suit, action or proceeding brought against
the Company in any federal or state court as described in the preceding sentence
or in the next paragraph of this Section 7.06. If for any reason the Agent shall
cease to be available to act as such, the Company agrees to designate a new
agent in the united States on the terms and for the purposes of this Section
7.06 and with the prior consent of the Depositary, which consent shall not be
unreasonably withheld, and the Company shall notify the Depositary of the
address of such new agent. The Company further hereby irrevocably consents and
agrees to the service of any and all legal process, summons, notices and
documents in any suit, action or proceeding against the Company, by service by
mail of a copy thereof upon the Agent (whether or not the appointment of such
Agent shall for any reason prove to be ineffective or such Agent shall accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.05
39
hereof. The Company agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder brings a suit, action or
proceeding against (a) the Company, (b) the Depositary in its capacity as
Depositary under this Deposit Agreement or (c) against both the Company and the
Depositary, in either case, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending and, for such purposes, the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any object on that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.06, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
No disclaimer of liability under the Securities Act is intended by any
provision, of the Deposit Agreement.
The provisions of this Section 7.06 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION 7.07. Assignment. Subject to the provisions of Section 5.04 and
Article IV hereof, this Deposit Agreement may not be assigned by either the
Company or the Depositary.
SECTION 7.08. Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under this
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, Instruction IA(l) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the Securities Act.
40
IN WITNESS WHEREOF, MANUFACTURAS DE PAPEL, C.A. (MANPA), S.A.C.A., and
CITIBANK, N.A. have duly executed this Deposit Agreement as of the day and year
first above set forth and all Holders shall become parties hereto upon
acceptance by them of American Depositary Shares evidenced by Receipts issued in
accordance with the terms hereof.
MANUFACTURAS DE PAPEL, C.A.
(MANPA), S.A.C.A.
BY: /s/ Xxxxxxxxx Xxxxxxx T.
-----------------------------------
Name: Xxxxxxxxx Xxxxxxx T.
Title: Executive President
BY: /s/ Xxxx Xxxxxxx Xxxxxx V.
-----------------------------------
Name: Xxxx Xxxxxxx Xxxxxx V.
Title: Corporate V.P. of Finance
CITIBANK, N.A.
BY: /s/ Mercedes Sampredo
-----------------------------------
Name: Mercedes Sampredo
Title: Vice President
41
CUSIP Number ___________________
American Depositary Shares (1
American Depositary Share
representing twenty-five Fully
Paid common shares, each of Par
Value of Ten Bolivars (Bs.
10.00)
EXHIBIT A
Number [FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED COMMON SHARES
of
Manufacturas de Papel, C.A. (MANPA), S.A.C.A.
(Incorporated under the laws of
the Republic of Venezuela)
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as depositary (herein
called the "Depositary"), hereby certifies that ______________________ owner of
____ American Depositary Shares, representing _______ deposited common shares,
each of Par Value of Ten Bolivars (Bs. 10.00), including evidence of rights to
receive such common shares (the "Shares") of Manufacturas de Papel, C.A.
(MANPA), S.A.C.A., a corporation incorporated under the laws of the Republic of
Venezuela (the "Company"). As of the date of the Deposit Agreement (hereinafter
referred to), each American Depositary Share represents twenty-five (25) Shares
deposited under the Deposit Agreement with the Custodian which at the date of
execution of the Deposit Agreement is Citibank, N.A. (the "Custodian"). The
ratio of Depositary Shares to shares of stock is subject to subsequent amendment
as provided in Article IV of the Deposit Agreement. The Depositary's principal
executive office is located at 111 Wall Street, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
(1) The Deposit Agreement. This American Depositary receipt is one
of an issue of American Depositary Receipts ("Receipts"), executed and delivered
A-1
pursuant to the Deposit Agreement, dated as of June 11, 1996 (as amended from
time to time, the "Deposit Agreement"), by and among the Company, the
Depositary, and all registered Holders and Beneficial Owners of Receipts from
time to time of Receipts issued thereunder, each of whom by accepting a Receipt
agrees to become a party thereto and become bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners and the rights and duties of the Depositary in
respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash, collectively, "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Principal
Office of the Depositary and the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the By-laws of the
Company and are qualified by and subject to the detailed provisions of the
Deposit Agreement, to which reference is hereby made. All capitalized terms used
herein which are not otherwise defined herein shall have the meanings ascribed
thereto in the Deposit Agreement. The Depositary makes no representation or
warranty as to the validity or worth of the Deposited Securities.
(2) Surrender of Receipts and Withdrawal of Deposited
Securities.Upon surrender, at the Principal Office of the Depositary, of this
Receipt and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (10) hereof
and Section 5.09 and Exhibit B of the Deposit Agreement) and (ii) all fees,
taxes and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement
the Company's By-laws, Article (23) of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder hereof
is entitled to the delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
evidenced by this Receipt. Subject to the last sentence of this paragraph, such
Deposited Securities may be delivered in registered form or by electronic
delivery. Such Deposited Securities may be delivered by the delivery of (a)
certificates in the name of the Holder hereof or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of transfer
to such Holder or as ordered by him and (b) any other securities, property and
cash to which such Holder is then entitled in respect of this Receipt. Delivery
shall be made, at the option of the Holder hereof, either at the principal
office of the Custodian or at the Principal Office of the Depositary for further
delivery to such Holder, provided that the forwarding of certificates for Shares
or other Deposited Securities for such delivery at the Principal Office of the
Depositary shall be at the request, risk and expense of the Holder hereof, and
for the account of such Holder.
A-2
A Receipt surrendered for such purposes shall if so required by the
Depositary be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Holder thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon, the
Depositary shall direct the Custodian to deliver at the designated office of the
Custodian, subject to Sections 2.06, 3.01, 3.02, 5.09 and to the other terms and
conditions of the Deposit Agreement, the Company's By-laws, and to the
provisions of or governing the Deposited Securities and other applicable laws,
now or hereafter in effect, to or upon the written order of the person or
persons designated in the order delivered to the Depositary if so required by
the Depositary as provided above, the Deposited Securities represented by such
Receipt together with any certificate or other proper documents of or relating
to title for the Deposited Securities, except that the Depositary may make
delivery to such person or persons at the Principal Office of the Depositary of
any dividends or distributions with respect to the Deposited Securities
represented by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be recorded in the name
of the Holder surrendering such Receipt, and shall issue and deliver to the
person surrendering such Receipt a new Receipt evidencing American Depositary
Shares representing any remaining fractional Share.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to
the limitations set forth herein and in the Deposit Agreement, the transfer of
this Receipt is registrable on the books of the Depositary at its Principal
Office by the Holder hereof in person or by duly authorized attorney, upon
surrender of this Receipt at any of the Depositary's designated transfer
offices, properly endorsed for transfer or accompanied by a proper instrument or
instruments of transfer (including any certifications that the Depositary or the
Company may require in order to comply with applicable laws, signature
guarantees in accordance with standard industry practice and the accurate
completion of any endorsements appearing on this Receipt) and (i) duly stamped
A-3
as may be required by the laws of the State of New York and the United States of
America, and (ii) accompanied by funds sufficient to pay any applicable transfer
taxes, duties and the fees and expenses of the Depositary including the fees set
forth in Article (10) hereof, and upon compliance with such regulations, if any,
as the Depositary may establish for such purpose, subject to Article (23) of
this Receipt. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt for any authorized number of
American Depositary Shares requested, evidencing the same aggregate number of
American Depositary Shares as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, any Custodian or any Registrar may require payment
from the presenter of the Receipt of a sum sufficient to reimburse it for any
tax, duties or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax, duty, charge, fee and expense
with respect to Shares being deposited or Deposited Securities being withdrawn)
and payment of any applicable fees as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature or other matters, subject to Article (23) of this Receipt, and may
also require compliance with any laws or governmental regulations relating to
American depositary receipts or to the withdrawal of Deposited Securities.
After consultation with the Company, the delivery of Receipts
against deposits of Shares generally or against deposits of particular Shares
may be suspended, or the delivery of Receipts against the deposit of particular
Shares may be withheld, or the registration of transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Company (or the appointed agent for the
Company for the transfer and registration of Shares, which may but need not be
the Share Registrar) are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company in good faith at any time or from
time to time, because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit Agreement
or under the Company's By-laws or for any other reason, subject in all cases to
Article (23) hereof. Notwithstanding any other provision of the Deposit
Agreement, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended except as required in General Instructions IA(1)
to Form F-6 (as may be amended) under the Securities Act of 1933 in connection
with (i) temporary delays caused by closing the transfer books of the Depositary
or the Company (or the appointed agent for the Company for the transfer and
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registration of Shares) or the deposit of Shares in connection with voting at a
shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes, duties and similar charges, and (iii) compliance with any u.s. or foreign
laws or governmental regulations relating to the Receipts or to the withdrawal
of the Deposited Securities. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under the Deposit Agreement any Shares or
other Deposited Securities required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of this Deposit Agreement, the Company may from time to time request
Holders or former Holders to provide information as to the capacity in which
they hold or held Receipts and regarding the identity of any other persons then
or previously interested in such Receipts and the nature of such interest and
various other matters. Each Holder agrees to provide any such information
reasonably requested by the Company or the Depositary pursuant to this Section,
whether or not they are Holders at the time of such request. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting the Depositary to forward any such requests to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
(6) Ownership Restrictions. The Company may restrict transfers of
the Shares where such transfer might result in ownership of Shares exceeding
limits under applicable law or the By-laws of the Company. The Company may also
restrict, in such manner as it deems appropriate, transfers of the American
Depositary Shares where such transfer may result in the total number of Shares
represented by the American Depositary Shares beneficially owned by a single
Holder to exceed the limits under any applicable law. The Company may, in its
sole discretion, instruct the Depositary to take action with respect to the
ownership interest of any Holder in excess of the limitation set forth in the
preceding sentence, including but not limited to a mandatory sale or disposition
on behalf of a Holder of the Shares represented by the American Depositary
Shares held by such Holder in excess of such limitations, if and to the extent
such disposition is permitted by applicable law.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any
tax, duty or other governmental charge shall become payable by the Depositary or
any Custodian with respect to any Receipt or any Deposited Securities
represented by the American Depositary Shares evidenced hereby, such tax, duty
or other governmental charge shall be payable by the Holder hereof to the
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Depositary. The Depositary may refuse to effect any registration of transfer of
this Receipt or any withdrawal of Deposited Securities represented by the
American Depositary Shares 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
American Depositary Shares evidenced by this Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax, duty or other governmental charge, the Holder hereof remaining liable
for any deficiency. The Holder shall indemnify the Depositary, the Company, the
Custodian and any of their respective directors, employees, agents, and
Affiliates against, and hold each of then harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of tax, reduced rate of withholding at source
or other tax benefit obtained for such Holder pursuant to Section 4.14 of the
Deposit Agreement.
(8) Representations and Warranties of Depositors. Every person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that, to the best of such person's knowledge, such Shares
and each certificate therefor are validly issued, outstanding, fully paid,
non-assessable, not subject to calls for additional payments of any kind and
that any preemptive rights have been validly waived or exercised and that the
person making such deposit is duly authorized to do so. Each such person shall
be deemed to acknowledge complete responsibility for the report of any false
information relating to foreign exchange transactions to the Depositary, the
Custodian or any governmental authority in Venezuela in connection with the
issuance of Receipts and the deposit, transfer, surrender or withdrawal of
shares or Receipts. Every such person shall be deemed to represent that, the
deposit of Shares or sale of Receipts by that person is not restricted, and such
Shares do not constitute Restricted Securities, under the Securities Act of
1933. Such representations and warranties shall survive any such deposit,
transfer, surrender and withdrawal of Shares and Receipts.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit or any Holder may, in addition to the requirements
of Articles (4) and (5) hereof, be required from time to time (i) to file with
the Depositary or a Custodian such proof of citizenship or residence, taxpayer
status, exchange control approval, payment of all applicable taxes or other
governmental charges, the identity of any person legally or beneficially
interested in the Receipt and the nature of such interest, (ii) provide such
information relating to the registration on the books of the Company (or the
appointed agent of the Company for transfer and registration of Shares, which
may, but need not, be the Share Registrar) of the Shares presented for deposit,
(iii) establish compliance with all applicable laws, rules and regulations of or
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governing the Deposited Securities and the terms of the Deposit Agreement, and
(iv) execute and deliver to the Depositary or a Custodian such certificates and
to make such representations and warranties as the Depositary or the Company may
deem necessary or proper or as the Company reasonably may require by written
request to the Depositary and the Custodian. Subject to Article (23) hereof and
the terms of the Deposit Agreement, the Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof, or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made.
(10) Charges of Depositary. The Depositary shall charge any party to
whom Receipts are issued (including, without limitation, deposit or issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock for the Shares or Deposited Securities, or a distribution of
Receipts pursuant to Section 4.03 or 4.10 of the Deposit Agreement), or who
surrenders Receipts a fee of U.S. $5.00 or less per 100 American Depositary
Shares (or portion thereof) for the issuance or surrender, respectively, of a
Receipt. In addition the Depositary shall charge to the Holders a fee of U.S.
$2.00 or less per 100 American Depositary Shares (or portion thereof) for any
cash distribution made pursuant to the Deposit Agreement, including but not
limited to, Sections 4.02 through 4.05 thereof, and $5.00 or less per 100
American Depositary Shares (or portion thereof) in case of stock dividend, made
pursuant to the Deposit Agreement including, but not limited to Section 4.02
through 4.05 thereof. The Depositary shall also charge the holder hereof a fee
of $1.50 or less per certificate for a Receipt or Receipts for transfers made
pursuant to the terms of the Deposit Agreement. In addition, Holders will pay
taxes and other governmental charges, registration fees, cable, telex and
facsimile transmission and delivery expenses, and customary and other expenses
incurred by the Depositary in connection with its obligations and duties under
the Deposit Agreement and Exhibit B thereof. Any other charges and expenses of
the Depositary under the Deposit Agreement will be paid by the Company after
consultation and agreement between the Depositary and the Company concerning the
nature and amount of such charges and expenses. All fees and charges may at any
time and from time to time be changed by agreement between the Company and the
Depositary. The charges and expenses of the Custodian, nominee or any other
agent of the Depositary are for the sole account of the Depositary. The
provisions in respect of these charges may be changed in the manner indicated in
Article (21) of this Receipt.
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(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each American Depositary Share
evidenced hereby), when such Receipt is properly endorsed or accompanied by a
proper instrument or instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that the Company and the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this Receipt is registered on the books of
the Depositary as the absolute owner hereof for the purpose of determining the
person entitled to any distribution of dividends or other distributions or to
any notice provided for in the Deposit Agreement and for all other purposes, and
neither the Depositary nor the Company shall have the obligations or be subject
to any liability hereunder or under the Deposit Agreement to any holder of a
Receipt unless such holder is a Holder thereof.
(12) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt has been executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: ______________________________ By: ______________________________
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 111 Wall
Street, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Reports; Inspection of Transfer Books. The Company currently
furnishes the Securities and Exchange Commission with certain public reports and
documents required by the laws of Venezuela, Bolsa de Valores de Caracas and
Bolsa de Valores de Maracaibo in accordance with Rule 12g3-2(b) of the
Securities Exchange Act of 1934. Should the Company become subject to additional
informational requirements, it will in, accordance therewith file reports and
other information with the Commission. Such reports and information are
available for inspection and copying by Holders at the public reference
facilities maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Holders at its
Principal Office and at the office of each, Custodian, copies of the Deposit
Agreement, any notices reports or communications, including any proxy soliciting
material, received from the Company which are both (a) received by the
Depositary, a Custodian, or the nominee of either of them as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. To the extent required under Rule 12g3-2(b)
or otherwise in accordance with the Securities Exchange Act of 1934, such
reports and communications shall be in English. The Depositary will also send to
Holders copies of such reports when furnished by the Company pursuant to Section
5.06 of the Deposit Agreement.
The Depositary will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by Holders, provided that such inspection shall not be for the purpose of
communicating with Holders 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
Receipts.
Subject to Article (23) hereof, the Depositary may close the
transfer books (with notice to the Company if other than in the ordinary course
of business), at any time or from time to time, when deemed necessary or
advisable by it in good faith in connection with the performance of its duties
hereunder or at the reasonable written request of the Company.
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary or any Custodian receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
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of the Depositary, pursuant to Section 4.07 of the Deposit Agreement, be
converted on a reasonable basis, by sale or any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States, and subject to the Deposit Agreement, promptly convert or cause
to be converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by, the
Depositary) to the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively without liability for interest thereon. The Depositary shall
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 shall
be held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders of Receipts then outstanding. Pursuant to Articles (4)
and (7) hereof, if the Company or the Depositary is required to withhold and
does withhold from any cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, duties or other
governmental charges, the amount distributed to Holders on the American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company to the
relevant governmental authority.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall deposit or cause
such Shares to be deposited with and registered in the name of the Custodian and
thereupon the Depositary may, subject to Section 5.07 hereof, either (i)
distribute to the Holders entitled thereto, as of the record date fixed pursuant
to Section 4.08 of the Deposit Agreement, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts for American Depositary Shares, which
represents in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of this Deposit Agreement, including, without
limitation, Sections 2.02, 2.03, 4.04, 5.07 and 5.09 of the Deposit Agreement;
in lieu of delivering Receipts for fractional American Depositary Shares in any
such case, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.02 of the Deposit
Agreement, or (ii) if additional Receipts are not so distributed (except
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
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is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, after the Company, in the fulfillment of its
obligations under Section 5.07 of the Deposit Agreement, has furnished an
opinion of u.s. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges, or effect the distribution of unregistered
Shares, and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to Holders entitled thereto in
proportion to the number of American Depositary Shares held by them respectively
and the Depositary shall distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
In the event that the Company shall offer or cause to be offered to
the holders of any, Deposited Securities any rights to subscribe for additional
Shares of the corresponding Series or any rights of any other nature, the
Depositary may, after consultation with the Company, and, if requested in
writing by the company, shall, take action, subject to the terms of this Deposit
Agreement, as follows:
(a) if at the time of the offering of any rights, the Depositary
determines 1n its discretion that it is lawful and feasible to
make such rights available to all or certain Holders or
Beneficial Owners but not to others, by means of warrants or
otherwise, the Depositary may distribute warrants or other
instruments therefor in such form as it may determine, to the
Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited
Securities held by them respectively, or employ such other
method as it may deem feasible in order to facilitate the
exercise, sale or transfer of rights or the securities
obtainable upon the exercise of such rights, by such Holders
or Beneficial Owners; or
(b) if at the time of the offering of any rights, the Depositary
determines in its discretion that it is not lawful or not
feasible to make such rights available to certain Holders or
Beneficial Owners 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 may, in its discretion, sell such rights or such
warrants or other instruments at public or private sale, in a
riskless principal capacity, at such place or places and upon
A-11
such terms as it may deem proper, and allocate the, 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 Receipt or
Receipts, or otherwise, and distribute such net proceeds so
allocated to the extent practicable as in the case of a
distribution of cash pursuant to Section 4.02 hereof. The
Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such
rights available to Holders in general or any Holder or
Holders in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such rights, warrants or other
instruments except in those cases where the Depositary makes
representations and warranties in connection with the sale of
such rights, warrants or other instruments.
If the Depositary does not receive such written request from the
Company, the Depositary shall, after consultation with the Company, and after
obtaining opinion(s) of United States and Venezuelan counsel, as applicable,
reasonably satisfactory to the Depositary, have discretion as to the procedure
to be followed (i) in making such rights available to the Holders, or (ii) in
disposing of such rights on behalf of such Holders and distributing the net
proceeds available in dollars to such Holders as in the case of a distribution
of cash pursuant to Section 4.02 of the Deposit Agreement, or (iii) in allowing
such rights to lapse in the event such rights may not be made available to
Holders or be disposed of and the net proceeds thereof made available to
Holders.
Notwithstanding anything to the contrary in this Article (14), if
registration (under the Securities Act or any other applicable law) of the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not offer such rights to the
Holders (i) unless and until a registration statement under the Securities Act
covering such offering is in effect, or (ii) unless the Company furnishes the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, satisfactory to the Depositary or other evidence satisfactory to
the Depositary to the effect that the offering and sale of such securities to
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the Holders of such Receipts are exempt from or do not require registration
under the provisions of the Securities Act or any other applicable laws. Because
Venezuelan law presently does not recognize the issuance of preemptive rights in
negotiable form and the possibility of such issuance is unlikely, a liquid
market for preemptive rights may not exist, and this may adversely affect (1)
the ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
Whenever the Custodian shall receive any distribution other than
cash, Shares or rights upon any Deposited Securities, the Depositary shall;
after consultation with the Company, and after obtaining, at the Company's
expense, opinion(s) of United States and Venezuelan counsel, as applicable,
satisfactory to the Depositary that the proposed distribution does not violate
any applicable laws or regulations, cause the securities or property so received
to be distributed to the Holders entitled thereto, as of a record date fixed
pursuant to Section 4.08 of the Deposit Agreement, in proportion to the number
of American Depositary Shares of the corresponding Series representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution, net of expenses of the Depositary; provided, however, that, if in
the opinion of the Depositary or its counsel, 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
without limitation any requirement (i) that the Company, the Depositary or the
Custodian withhold an amount on account of taxes or other governmental charges
or (ii) that under applicable securities or exchange control regulations or law
such securities must be registered under the Securities Act or other law in
order to be distributed to Holders), the Depositary deems such distribution not
to be feasible, the Depositary may obtain, at the Company's expense, opinion(s)
of United States and Venezuelan counsel, as applicable, as to an equitable and
practicable method of effecting such distribution and may rely on such advice,
which method may include, but not be limited to, the sale (at public or private
sale) of the securities or property thus received, or any part thereof, and the
distribution of the net proceeds of any such sale (net of taxes, fees and
expenses of the Depositary set forth in Section 5.09 or in Exhibit B of the
Deposit Agreement) by the Depositary to the Holders entitled thereto as in the
case of a distribution received in cash.
Pursuant to Articles (4) and (7) hereof, if the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax, duty or other governmental charges
which the Depositary is obligated to withhold, the Depositary may dispose of all
or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
A-13
sale, as the Depositary deems necessary and practicable to pay any such taxes,
duties or governmental charges, and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes, duties or governmental
charges to Holders entitled thereto in proportion to the number of American
Depositary Shares held by them respectively and shall distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
The Custodian, the Depositary or the Company or its agents shall use
reasonable efforts to make and maintain arrangements enabling Holders who are
citizens or residents of the United States to receive any rebates, tax and/or
duty credits or other benefits (pursuant to treaty or otherwise) relating to
dividend payments on the American Depositary Shares to which they are entitled,
and they may file any such reports necessary to obtain benefits under applicable
tax treaties for the Holders.
(15) Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any cash dividend or other
cash distribution or any distribution other than cash, or any rights to be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall, after consultation with the Company, fix a record date for the
determination of the Holders of Receipts who shall be entitled to receive such
dividend, distribution rights or the net proceeds of the sale thereof, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each American Depositary Share. Subject
to the provisions of Sections 4.02 through 4.08 of the Deposit Agreement and to
the other terms and conditions of this Receipt and the Deposit Agreement, the
Holders of Receipts at the close of business on such record date shall 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 in proportion to the number of American Depositary Shares held by them
respectively, or to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
A-14
(16) Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix a record date in respect of such
meeting for the giving of instructions for voting or such consent or proxy. The
Depositary shall, if requested in writing in a timely manner by the Company and
at the Company's expense, mail to Holders of: (a) such notice of meeting, (b) a
statement that the Holders at the close of business on the specified record date
will be entitled, subject .to any applicable law, the Company's By-laws and the
provisions of or governing Deposited Securities (which provisions, if any, shall
be summarized in pertinent part by the Company), to instruct the Depositary as
to the exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder's American Depositary Shares and
(c) a brief statement as to the manner in which such instructions may be given.
If the Depositary receives a request less than 20 days prior to such vote or
meeting, the Depositary will make its best efforts to notify Holders. Upon the
written request of a Holder of American Depositary Shares evidenced by a Receipt
on such record date received on or before the date established by the Depositary
for such purpose, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law and the provisions of the Company's By-laws and
the provisions of the Deposited Securities, to vote or cause the Custodian to
vote the Shares and/or other Deposited Securities represented by American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request.
Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
way make use of, for purposes of establishing a quorum or otherwise the Shares
or other Deposited Securities represented by American Depositary Shares except
pursuant to and in accordance with such written instructions from Holders.
Shares or other Deposited Securities represented by American Depositary Shares
for which no specific voting instructions are received by the Depositary from
the Holder shall not be voted.
(17) Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the Receipts shall,
A-15
subject to the provisions of the Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory to
the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as in the case of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited shares, with necessary modifications to the form of Receipt
contained in this Exhibit A to the Deposit Agreement, specifically describing
such new Deposited Securities or corporate change. The Company agrees to,
jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, and with
the Company's approval, shall if the Company requests, subject to receipt of an
opinion of Company's counsel satisfactory to the Depositary that such action is
not in violation of any applicable laws or regulations, if the Company requests,
sell such securities at public or private sale, at such place or places and upon
such terms as it may deem proper and may allocate the net proceeds of such sales
for the account of the Holders otherwise entitled to such securities 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. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder or Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such securities.
(18) Indemnification. The Company agrees to indemnify the
Depositary, the Custodian and any of their respective directors, employees,
agents and Affiliates against, and hold each of them harmless from, any loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) incurred by the
Depositary or the Custodian that may arise (a) out of or in connection with any
actions performed or omitted to be performed in connection with the Deposit
Agreement and the Receipts as the same may be amended, modified or supplemented
from time to time, in any such case (i) by the Depositary, the Custodian or any
of their respective directors, employees, agents and Affiliates, except to the
extent such loss, liability, tax, charge or expense is due to negligence or bad
A-16
faith of any of them, or (i1) by the Company or any of its directors, employees,
agents and Affiliates, or (b) out of delivery by the Depositary on behalf of the
Company of information regarding the Company in connection with the Deposit
Agreement, any offer or sale of Receipts, American Depositary Shares, Shares or
other Deposited Securities or any prospectus or registration statement under the
Securities Act of 1933 in respect thereof.
The indemnities contained in the proceeding paragraph shall not
extend to any liability or expense which may arise out of any Pre-Release
Transaction (as defined in Article (24) hereof and Section 5.08 and Section 5.10
of the Deposit Agreement).
The Depositary agrees to indemnify the Company and its directors,
employees, agents and Affiliates against and hold each of them harmless from,
any loss, liability, tax, charge or expense of any kind whatsoever (including,
but not limited to, the reasonable fees and expenses of counsel) which may arise
(a) out of or in connection with the issuance, transfer, deposit or withdrawal
of Receipts, American Depositary Shares, Shares, or other Deposited Securities,
as the case may be, or any offering documents in respect thereof in connection
with its role as Depositary, or (b) out of any actions performed or omitted to
be performed by the Depositary in connection with the Deposit Agreement and the
Receipts or out of delivery by the Company on behalf of the Depositary of
information regarding the Depositary in connection with the Deposit Agreement,
the Receipt, the American Depositary Shares, the Shares, or any Deposited
Securities, as the same may be amended from time to time, in any such case due
to the negligence or bad faith of the Depositary.
The obligations set forth in this Article (18) shall survive the
termination of the Deposit Agreement and the succession or substitution of any
party hereto.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Article (18) and Section
5.08 of the Deposit Agreement) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which defense shall be reasonable in the circumstances. No indemnified person
shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
A-17
(19) Liability of the Company and the Depositary. None of the
Depositary, its controlling persons or its agents nor the Company, its
controlling persons nor its agents, 1f any, will incur any liability to any
Holder or other person if, by reason of any present or future law, the By-laws
of the Company, the provisions of or governing any Deposited Security, act of
God, war or other circumstance beyond its control, the Depositary, its agents or
the Company or its agents shall be prevented, delayed or forbidden from doing or
performing any act or thing which 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. Each
of the Depository, its controlling persons and its agents, the Company, its
controlling persons and its agents, assumes no obligation and shall be subject
to no liability under the Deposit Agreement or this Receipt to Holders or other
persons, except to perform such obligations as are specifically set forth and
undertaken by it to perform in the Deposit Agreement in good faith and using its
reasonable judgment. The Depositary and the Company undertake to perform such
duties and only such duties as are specifically set forth in the Deposit
Agreement, and no implied covenants or obligations will be read into the Deposit
Agreement against the Depositary or the Company or their respective agents. None
of the Depositary, its controlling persons or its agents will be (a) under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this Receipt that 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 or (b) liable for any action or inaction by it or them
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder or any other person
believed by it or them in good faith to be competent to give such advice or
information. The Depositary, its controlling persons and its agents, and the
Company its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, direction or other document believed
by them in good faith to be genuine and to have been signed or presented by the
proper party or parties. Subject to the provisions of this paragraph (19), the
Depositary and its agents, directors, officers and employees will not be liable
for any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any such vote is cast or for the effect
of any such vote. The Depositary may own and deal in any class of securities of
the Company and its affiliates and in Receipts.
(20) Resignation and Removal of the Depositary; Appointment of
Successor Depositary.The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of its election so to do delivered to
the Company, such resignation to be effective on the earlier of (i) the 60th day
A-18
after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
,Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the earlier of
(i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall 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. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder, (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with whicho the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(21) Amendment, Supplement. The form of the Receipts in respect of
the Shares and any provisions of the Deposit Agreement may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holders. Any amendment or supplement which shall
impose or increase any fees or charges (other than the charges of the Depositary
for transfer and registration fees, fees in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise prejudice any substantial
existing right of Holders or Beneficial Owners, shall not, however, become
effective as to outstanding Receipts until the expiration of 60 days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the American Depositary Shares to be registered on
A-19
Form F-6 under the Securities Act or (b) the American Depositary Shares or
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt at any time in accordance with such changed
rules. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(22) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 60
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Article (20) hereof and Section 5.04 of
the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 60 days prior to the date fixed for such termination. On
and after the date of termination of the Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Article (2) hereof and Section 2.05 of the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
of any applicable taxes or governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
A-20
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.05 of the Deposit Agreement,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated escrow account, without liability for interest for
the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement with respect to the
Receipts and the Shares, Deposited Securities and American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case the charges of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges or assessments). Upon the termination of the Deposit
Agreement as to Receipts, the Company shall be discharged from all obligations
under the Deposit Agreement as to the Receipts and the Shares, Deposited
Securities and American Depositary Shares except for its obligations to the
Depositary under Articles (10) and (18) hereof, and Sections 5.08 and 5.09 of
the Deposit Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or 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 or this Receipt 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.
A-21
(24) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (24), the Depositary and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares furnished on behalf of the holder thereof. In its
capacity as Depositary, the Depositary shall not lend Shares or Receipts;
provided, however, that the Depositary may (i) issue Receipts prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.05 of the Deposit Agreement, including Receipts which were issued
under (i) above but for which Shares may not have been received (each such
transaction a "Pre-Release Transaction"). The Depositary may receive Receipts in
lieu of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such Pre-Release Transaction will be (a) accompanied by or subject
to a written agreement whereby the person or entity (the "Applicant") to whom
Receipts or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or
Receipts that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Shares or
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or Receipts and (z) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, United States government
securities or such other collateral as the Depositary reasonably deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of Receipts and Shares involved in such Pre-Release Transactions at
anyone time to thirty percent (30%) of the Receipts outstanding (without giving
effect to Receipts outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of Receipts and Shares involved in Pre-Release Transactions with
anyone person on a case by case basis as it deems appropriate. The Depositary
may retain for its own account any compensation received by it in conjunction
with the foregoing. Collateral provided pursuant to (b) above, but not earnings
thereon, shall be for the benefit of the Holder.
A-22
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ____________________________________________________ whose
taxpayer identification number is _________________________________ and whose
address including postal zip code is
_______________________________________________________, the within Receipt and
all rights thereunder, hereby irrevocably constituting and appointing
__________________ attorney-in-fact to transfer said Receipt on the books of the
Depositary with full power of substitution in the premises.
Dated: _____________________ Name: ______________________________
By: ________________________________
Title: _____________________________
NOTICE: The signature of the Holder
to this assignment must correspond
with the name as written upon the
face of the within instrument in
every particular, without alteration
or enlargement or any change
whatsoever.
SIGNATURE GUARANTEED
____________________________
A-23
EXHIBIT B
CHARGES OF THE DEPOSITARY
Service Rate By Whom Paid
------- ---- ------------
(1) Issuance of Receipt; deposit of Up to $5.00 per 100 American Party for whom deposits are made
Shares (including deposits pursuant to Depositary Shares (or fraction or receiving Receipt
Stock dividends or any other deposits) thereof)
(2) Delivery of deposited Shares or Up to $5.00 per 100 American Party surrendering Receipts or
other Deposited Securities, property Depositary Shares (or fraction making withdrawal
and cash against surrender of Receipts thereof)
(3) Distribution of dividends or Up to $2.00 per 100 American Party to whom distribution, or for
other distributions; sale or exercise Depositary Shares whom the sale or exercise of rights,
of rights or other corporate action is made
involving distributions to
shareholders
(4) Transfer of Receipt. $1.50 Party presenting Receipt for
transfer
In addition, Holders will pay (i) taxes and other governmental charges,
(ii) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the share register of the
Company or its appointed agent for the registration of transfer and accordingly
applicable to transfers of Shares to the name of the Depositary or its nominee
or a Custodian or its nominee or the person making a withdrawal, on the making
of deposits pursuant to Section 2.02 or withdrawals pursuant to Section 2.05 of
this Deposit Agreement, (iii) such cable, telex and facsimile transmission and
delivery expenses as are expressly provided in this Deposit Agreement to be at
the expense of persons depositing Shares or Holders, (iv) such customary
expenses and charges as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.08 of the Deposit Agreement and (v) such
fees and expenses as are incurred by the Depositary, if any, in connection with
compliance with foreign exchange control regulations.
The Company after consultation and agreement between the Depositary and
the Company as to the amount and nature of any other charges, will pay those
other charges of the Depositary and those of any Registrar, if any, plus
reasonable out-of-pocket expenses in accordance with written agreements entered
into between the Depositary and the Company from time to time.
B-1
