Exhibit (a)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Manufacturas de Papel, C.A. (MANPA), S.A.C.A.
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
OUTSTANDING UNDER THE TERMS OF THE
DEPOSIT AGREEMENT, DATED AS OF JUNE 11, 1996
------------------------------------
Amendment No. 1
to
Deposit Agreement
------------------------------------
Dated as of January 28, 2008
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Table of Contents
Page
ARTICLE I
DEFINITIONS....................................................................2
SECTION 1.01 Definitions.................................................2
SECTION 1.02 Effective Date..............................................2
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT................................................2
SECTION 2.01 Deposit Agreement...........................................2
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners.....2
SECTION 2.03 Change of Par Value; Share to ADS Ratio.....................3
ARTICLE III
AMENDMENTS TO THE ADRS AND FORM OF ADR.........................................4
SECTION 3.01 ADR Amendment...............................................4
SECTION 3.02 Reference to Deposit Agreement..............................4
SECTION 3.03 Change of Par Value.........................................5
SECTION 3.04 Ratio Change................................................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................5
SECTION 4.01 Representations and Warranties..............................5
ARTICLE V
MISCELLANEOUS..................................................................6
SECTION 5.01 New ADRs....................................................6
SECTION 5.02 Notice to Holders of ADSs...................................6
SECTION 5.03 Indemnification.............................................7
SECTION 5.04 Ratification................................................7
SECTION 5.05 Governing Law...............................................7
SECTION 5.06 Counterparts................................................7
ii
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT, dated as of January 28, 2008 (the
"Amendment"), by and among Manufacturas de Papel, C.A. (MANPA), S.A.C.A., a
company incorporated under the laws of the Republic Bolivariana 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 American Depositary
Receipts outstanding under the Deposit Agreement, dated as of June 11, 1996 (the
"Deposit Agreement").
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Deposit
Agreement for the creation of American Depositary Shares representing the Shares
(as defined in the Deposit Agreement) so deposited and for the execution and
delivery of American Depositary Receipts ("ADRs") in respect of the American
Depositary Shares; and
WHEREAS, in order to take into account the recently enacted Currency
Restructuring Law of the Republic Bolivariana of Venezuela, the Company (w) has
changed the par value of its Shares, from Ten Bolivars (Bs. 10.00) each to One
Hundred Bolivars (Bs. 100.00) each, (x) desires to amend the Deposit Agreement,
the ADRs currently outstanding and the form of ADR annexed to the Deposit
Agreement to reflect such change, and the change of the number of Shares each
ADS represents from (i) twenty-five (25) Shares-to-one ADS, to (ii) five (5)
Shares-to-one ADS, and (y) has previously given notice thereof to all Holders
(as defined in the Deposit Agreement) of ADSs; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the Company
and the Depositary deem it necessary and desirable to amend the Deposit
Agreement, the ADRs currently outstanding and the form of ADR annexed to the
Deposit Agreement as Exhibit A for the purposes set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement, the ADRs currently outstanding and
the form of ADR annexed as Exhibit A to the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used but not defined herein shall have the meanings given
to such terms in the Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean the date
set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Deposit Agreement to
the terms "Deposit Agreement" shall, as of the Effective Date, refer to the
Deposit Agreement, dated as of June 11, 1996, as amended by this Amendment and
as further amended and supplemented after the Effective Date.
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners. From
and after the Effective Date, the amendments to the Deposit Agreement effected
hereby shall be binding on all Holders and Beneficial Owners of ADSs issued and
2
outstanding as of the Effective Date and on all Holders and Beneficial Owners of
ADSs issued after the Effective Date. Notwithstanding anything contained herein,
in the Deposit Agreement or in any ADR, from and after the Effective Date any
reference in the Deposit Agreement to Holders and Beneficial Owners of Receipts,
ADRs or American Depositary Receipts shall include, unless a reasonable
interpretation of the context otherwise mandates, Holders and Beneficial Owners
of ADSs.
SECTION 2.03 Change of Par Value; Share to ADS Ratio. As of the Effective
Date, the Deposit Agreement is amended as follows:
(a) Section 1.02 is amended and restated in its entirety to read as
follows:
"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 Holder of
Receipts pursuant to the terms and conditions of the Deposit Agreement.
Each American Depositary Share shall represent five (5) 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."
(b) Section 1.21 is amended and restated in its entirety to read as
follows:
"SECTION 1.21. Shares. The term "Shares" shall mean the Company's
common shares, One Hundred Bolivars (Bs. 100.00) 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
3
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 to
conversion."
ARTICLE III
AMENDMENTS TO THE ADRS AND FORM OF ADR
SECTION 3.01 ADR Amendment. The First Paragraph of the form of ADR
attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued
and outstanding under the terms of the Deposit Agreement is hereby amended, as
of the Effective Date, to read in its entirety as follows:
"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
______________________ is the owner of ____ American Depositary Shares,
representing deposited common shares, each of Par Value of One Hundred
Bolivars (Bs. 100.00), 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 Bolivariana of
Venezuela (the "Company"). As of the date of the Deposit Agreement
(hereinafter referred to), each American Depositary Share represents five
(5) 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 office is located at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A."
SECTION 3.02 Reference to Deposit Agreement. The first sentence of
paragraph (1) of the Form of ADR attached as Exhibit A to the Deposit Agreement
and in each of the ADRs issued and outstanding under the terms of the Deposit
4
Agreement is hereby amended, as of the Effective Date, by deleting such sentence
in its entirety and inserting the following in its stead:
"(1) The Deposit Agreement. This American Depositary Receipt is one
of an issue of American Depositary Receipts ("Receipts"), executed and
delivered pursuant to the Deposit Agreement, dated as of June 11, 1996,
and amended by Amendment No. 1 to Deposit Agreement, dated as of January
28, 2008 (as so amended and as further amended and supplemented 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."
SECTION 3.03 Change of Par Value. All references to the common shares, Ten
Bolivars (Bs. 10.00) par value made in the form of ADR attached as Exhibit A to
the Deposit Agreement and in each of the ADRs outstanding, as of the Effective
Date, under the terms of the Deposit Agreement shall, as of the Effective Date,
refer to the common shares, One Hundred Bolivars (Bs. 100.00) par value.
SECTION 3.04 Ratio Change. All references in the form of ADR attached as
Exhibit A to the Deposit Agreement and in each of the ADRs issued and
outstanding, as of the Effective Date, under the terms of the Deposit Agreement
to the ratio of ADSs to Shares shall, as of the Effective Date, refer to one (1)
ADS representing five (5) Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
5
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and other document furnished hereunder or thereunder in the
Republic Bolivariana of Venezuela, neither of such agreements needs to be filed
or recorded with any court or other authority in the Republic Bolivariana of
Venezuela, nor does any stamp or similar tax need be paid in the Republic
Bolivariana of Venezuela on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or split
up of existing ADRs, shall be substantially in the form of the specimen ADR
attached as Exhibit A hereto. ADRs issued prior to the date hereof, which do not
reflect the changes to the form of ADR effected hereby, need to be exchanged by
the Holders thereof. The Depositary is authorized and directed to take any and
all actions deemed necessary to effect the foregoing.
SECTION 5.02 Notice to Holders of ADSs. The Depositary has, promptly
following the filing of the updated form of ADR pursuant to Rule 424(b) under
6
the U.S. Securities Act of 1933, as amended, sent notices informing the Holders
of ADSs (i) of the change of the ADS-to-Shares ratio and of the change of the
par value of the Shares, and (ii) that the Holders of ADRs are required to
exchange their ADRs for new ADRs reflecting the changes in par value and
ADS-to-Shares ratio. A copy of the notice so sent by the Depositary is attached
hereto as Exhibit B.
SECTION 5.03 Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.04 Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
SECTION 5.05 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its principles of choice of law.
SECTION 5.06 Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall be deemed an original, and all such counterparts
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
[signature page follows]
7
MANUFACTURAS DE PAPEL, C.A. (MANPA), S.A.C.A.
By: /s/ Xxxxxx Xxxxxxx T.
------------------------------------
Name: Xxxxxx Xxxxxxx T.
Title: Chairman
By: /s/ Xxxx Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxxx Xxxxxx
Title: Chief Financial Officer
CITIBANK, N.A., as Depositary
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
8
EXHIBIT A
CUSIP Number [______________]
American Depositary Shares
(one (1) American Depositary Share
representing five (5) Fully Paid
common shares, each of Par Value of
One Hundred Bolivars (Bs. 100.00))
EXHIBIT A
[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 Bolivariana 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 ______________________ is the owner of ____
American Depositary Shares, representing deposited common shares, each of Par
Value of One Hundred Bolivars (Bs. 100.00), 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
Bolivariana of Venezuela (the "Company"). As of the date of the Deposit
Agreement (hereinafter referred to), each American Depositary Share represents
five (5) 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 000 Xxxxxxxxx Xxxxxx, 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
pursuant to the Deposit Agreement, dated as of June 11, 1996, and amended by
Amendment No. 1 to Deposit Agreement, dated as of January 28, 2008 (as so
amended and as further amended and supplemented from time to time, the "Deposit
A-1
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 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
A-2
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 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
A-3
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
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
A-4
the American Depositary Shares evidenced hereby, such tax, duty or other
governmental charge shall be payable by the Holder hereof to the 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 the Republic Bolivariana of 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
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.
A-5
(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.
(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.
A-6
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: By:
-------------------------------- ------------------------------------
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-7
[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 the Republic Bolivariana 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 X
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
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
A-8
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)
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
A-9
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 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
A-10
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. 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 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.
A-11
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.
(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.
A-12
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, 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
A-13
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 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.
(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
A-14
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
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.
A-15
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.
(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 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
A-16
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
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.
(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
A-17
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-18
(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-19
EXHIBIT B
_________________________
Notice to Holders
_________________________
To the Registered Holders of
American Depositary Shares ("ADSs")
representing common shares, par value ten Bolivars (Bs. 10.00),
of Manufacturas de Papel, C.A. (MANPA), S.A.C.A.
Please be advised that Manufacturas de Papel, C.A. (MANPA), S.A.C.A. (the
"Company") has, in order to take into account the recently enacted Currency
Restructuring Law of Venezuela, as of December 19, 2007, changed the par value
of its Common Shares (the "Shares"), from Ten Bolivars (Bs. 10.00) each to One
Hundred Bolivars (Bs. 100.00) each, and, concurrently therewith, the Company has
effectuated a reverse split of the Shares pursuant to which holders of existing
Shares are to receive one new Share for every ten (10) existing Shares held as
of the close of business in New York on December 18, 2007. Accordingly,
Citibank, N.A.., as depositary for the ADSs (the "Depositary"), and the Company
have agreed to reflect the change in par value and the reverse stock split by
means of a change of the ratio of ADSs-to-Shares as follows:
Old Ratio: 1 ADS to 25 existing Shares
New Ratio: 1 ADS to 5 new Shares
Old CUSIP: 000000000
New CUSIP: 000000000
Effective Date: December 19, 2007
Holders of ADSs are hereby requested to surrender their ADRs for cancellation
and mandatory exchange for new ADRs reflecting the new ratio, the new number of
ADSs and the new CUSIP number. Each holder surrendering ten (10) ADSs (CUSIP
#000000000) for cancellation and mandatory exchange (such 10 ADSs represented
the right to receive 250 existing Shares) will receive five (5) new ADS (CUSIP
#000000000) representing the right to receive twenty five (25) new Shares. No
fractional new ADSs will be issued. Cash in lieu of fractional ADSs will be paid
for fractional entitlements at a rate based upon the net proceeds received by
the Depositary for the sale of the aggregate of the fractional entitlements.
The Depositary has, pursuant to Rule 424(b) under the U.S. Securities Act of
1933, as amended, filed with the U.S. Securities and Exchange Commission ("SEC")
a new form of American Depositary Receipt that reflects the new ADS-to-Shares
ratio. A copy of such filing can be retrieved from the SEC website at
xxx.xxx.xxx under Registration Number 333- 147527. The Company and the
Depositary have agreed to amend the Deposit Agreement for the ADSs (to reflect
the new ratio ADS-to-Shares ratio and the change in par value of the Shares) and
to file the applicable amendments to the F-6 Registration Statement for the ADSs
with the SEC at a later date.
To exchange your ADR(s), you should complete the attached Letter of Transmittal
and deliver it with your ADR(s) in the enclosed pre-addressed envelope to
Citibank, N.A. Please follow carefully the instructions enclosed with this
notice. No fee will be charged to you for the cancellation and exchange.
B-1
If you have any questions about the above exchange, please call Citibank ADR
Shareholder Services at 0-000-000-0000. Copies of the Amendment are available at
the principal offices of the Depositary at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000.
Citibank, N.A. as Depositary
Date: December 19, 2007
B-2
