AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 dated as of May , 2003 (the "Amendment") to the
Deposit Agreement dated as of January 1, 1964, as amended and restated as of
June 1, 1991, October 15, 1991, July 1, 1993 and September 12, 1996 and amended
as of July 9, 2001 (as so amended, the "Deposit Agreement"), among Tubos xx
Xxxxx de Mexico, S.A., a company organized under the laws of the United Mexican
States (the "Company"), JPMorgan Chase Bank (f.k.a. Xxxxxx Guaranty Trust
Company of New York) as depositary (the "Depositary"), and all holders from time
to time of American Depositary Receipts issued thereunder.
W I T N E S S E T H:
WHEREAS, the Company and the Depositary entered into the Deposit
Agreement for the purposes set forth therein; and
WHEREAS, pursuant to Section 6.01 of the Deposit Agreement, the
Company and the Depositary desire to amend the terms of the Deposit Agreement
and Receipts.
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 as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
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 (as herein defined),
refer to the Deposit Agreement as amended by this Amendment.
SECTION 2.02. Section 6.02 of the Deposit Agreement. Section 6.02 of the
Deposit Agreement is amended and restated in its entirety to read as follows:
"Section 6.02. Termination. The Depositary may, and shall at the
written direction of the Company, terminate the Deposit Agreement and
the Receipts by mailing notice of such termination to the record
holders of all Receipts at least 30 days prior to the date fixed in
such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further
acts under the Deposit Agreement and the Receipts, except to receive
and hold (or sell) distributions on Deposited Securities and deliver
Deposited Securities being withdrawn. As soon as practicable after the
expiration of six months from the date so fixed for termination, the
Depositary shall sell the Deposited Securities and shall thereafter
(as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by
it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the holders of Receipts entitled
thereto which have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations in
respect of the Deposit Agreement and the Receipts, except to account
for such net proceeds and other cash. After the date so fixed for
termination, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the
Depositary and its agents."
SECTION 2.03. Section 7.07 of the Deposit Agreement. The following is
inserted into the Deposit Agreement as Section 7.07:
"Section 7.07. Offer by Tenaris S.A. or an Affiliate thereof. If
at any time after May 31, 2003, Tenaris S.A., a company organized
under the laws of Luxembourg, or any affiliate thereof (collectively,
the "Offeror"), makes anywhere in the United Mexican States or the
United States one or more public tender or exchange offers or any
other public transaction aimed at acquiring all or part of the
Company's American Depositary Shares (such offer or other transaction,
an "Offer"), each holder of Receipts outstanding on the expiration
date for the Offer as set forth in the prospectus or other offering
materials for the Offer (such date, as
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extended in accordance with applicable law, the "Offer Expiration
Date") will be deemed to have authorized and instructed the Depositary
to accept the Offer on its behalf and to tender into the Offer any and
all of such holder's American Depositary Shares, and, unless otherwise
instructed by the Company, the Depositary shall, subject to applicable
law and the terms of the Offer, so tender such American Depositary
Shares on behalf of such holder without any notice to, or action on
the part of, the holders of Receipts, the Company or any other person
or entity. In no event shall the provisions of this Section 7.07
impair the right of the holder of any Receipt to surrender such
Receipt and receive therefore the Deposited Securities represented
thereby in accordance with Section 2.05.
If the Depositary receives, on behalf of the holders of Receipts,
any securities pursuant to the Offer (the "Exchange Securities") and
either (i) the Exchange Securities have not been registered under the
Securities Act of 1933 or (ii) the Depositary has not received an
opinion of U.S. counsel to the Offeror in form reasonably acceptable
to the Depositary to the effect that the Exchange Securities may be
offered and sold in the United States without such registration, each
holder of Receipts will be deemed to have authorized and instructed
the Depositary to sell the Exchange Securities and distribute the net
proceeds to the holders of Receipts entitled thereto in such manner as
the Depositary deems fit, including, without limitation, requiring
each holder of Receipts to surrender its Receipt in order to receive
the payment to which it may be entitled.
If (x) the Exchange Securities have been registered under the
Securities Act of 1933 or the Depositary has received an opinion of
U.S. counsel to the Offeror in form reasonably acceptable to the
Depositary to the effect that the Exchange Securities may be offered
and sold in the United States without such registration, and (y) the
Exchange Securities are eligible for deposit into an American
depositary receipt facility of the Offeror (the "Offeror ADR
Facility"), each holder of Receipts will be deemed to have authorized
and instructed the Depositary to deposit the Exchange Securities into
the Offeror ADR Facility and instruct the depositary for the Offeror
ADR Facility to execute and deliver to the Depositary American
depositary shares representing such Exchange Securities to be issued
under the Offeror ADR Facility (the "Offeror ADSs")
Upon settlement of the Offer, after receipt by the Depositary of
Offeror ADSs from the depositary for the Offeror
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ADR Facility, the Depositary will deliver Offeror ADSs to the holders
of Receipts upon surrender of Receipts by such holders. It is hereby
acknowledged that during the period beginning at the Offer Expiration
Date until the time the Offeror ADSs are delivered to the Depositary
pursuant to the settlement of the Offer, it will not be possible for
the Depositary to deliver any Exchange Securities against surrender of
Receipts. Cash in lieu of fractional Offeror ADSs, if any, will
subsequently delivered by the Depositary."
ARTICLE III
AMENDMENTS TO THE FORM OF RECEIPT
SECTION 3.01. Amendments to the Form of Receipt. (a) Paragraph 2 of the
form of Receipt set forth as Exhibit A to the Deposit Agreement is amended and
restated in its entirety to read as follows:
"(2) The Deposit Agreement. This American Depositary Receipt is
one of a continuing issue provided by the Company for the convenience
of its non-resident shareholders generally evidencing rights of
similar tenor with respect to Stock deposited under, and all issued
and to be issued upon the terms and conditions set forth in, the
Deposit Agreement dated as of January 1, 1964, as amended and restated
as of June 1, 1991, October 15, 1991, July 1, 1993 and September 12,
1996 as amended as of July 9, 2001 and May , 2003 (as further amended
from time to time, herein called the Deposit Agreement), by and
between the Company, the Depositary, and all holders from time to time
of Receipts issued thereunder, each of whom by accepting a Receipt
agrees to become a party thereto and becomes bound by all the terms
and provisions thereof. The Deposit Agreement sets forth the rights of
holders of the Receipts and the rights and duties of the Depositary in
respect of the Stock deposited thereunder and any and all other
securities, property and cash from time to time received in respect of
any of such Stock and held thereunder (herein called Deposited
Securities). Copies of the Deposit Agreement are on file at the
principal office of the Depositary and the main office of the
Custodian. The statements made on the face and the reverse of this
Receipt are summaries of certain provisions of the Deposit Agreement
and are subject to the detailed provisions of the Deposit Agreement,
to which reference is hereby made."
4
(b) Paragraph 19 of the form of Receipt set forth as Exhibit A to the
Deposit Agreement is amended and restated in its entirety to read as follows:
"(19) Termination of Deposit Agreement. The Depositary may, and
shall at the written direction of the Company, terminate the Deposit
Agreement and the Receipts by mailing notice of such termination to
the record holders of all Receipts at least 30 days prior to the date
fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further
acts under the Deposit Agreement and the Receipts, except to receive
and hold (or sell) distributions on Deposited Securities and deliver
Deposited Securities being withdrawn. As soon as practicable after the
expiration of six months from the date so fixed for termination, the
Depositary shall sell the Deposited Securities and shall thereafter
(as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by
it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the holders of Receipts entitled
thereto which have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations in
respect of the Deposit Agreement and the Receipts, except to account
for such net proceeds and other cash. After the date so fixed for
termination, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the
Depositary and its agents."
SECTION 3.02. The following is inserted into the form of Receipt set forth
as Exhibit A to the Deposit Agreement as paragraph (23).
"(23) Offer by Tenaris S.A. or an Affiliate thereof. If at any
time after May 31, 2003, Tenaris S.A., a company organized under the
laws of Luxembourg, or any affiliate thereof (collectively, the
"Offeror"), makes anywhere in the United Mexican States or the United
States one or more public tender or exchange offers or any other
public transaction aimed at acquiring all or part of the Company's
American Depositary Shares (such offer or other transaction, an
"Offer"), each holder of Receipts outstanding on the expiration date
of the Offer as set forth in the prospectus or other offering
materials for the Offer (such date, as extended in accordance with
applicable law, the "Offer Expiration
5
Date") will be deemed to have authorized and instructed the Depositary
to accept the Offer on its behalf and to tender into the Offer any and
all of such holder's American Depositary Shares , and, unless
otherwise instructed by the Company, the Depositary shall, subject to
applicable law and the terms of the Offer, so tender such American
Depositary Shares on behalf of such holder without any notice to, or
action on the part of, the holders of Receipts, the Company or any
other person or entity. In no event shall the provisions of this
Section 7.07 impair the right of the holder of any Receipt to
surrender such Receipt and receive therefore the Deposited Securities
represented thereby in accordance with Section 2.05.
If the Depositary receives, on behalf of the holders of Receipts,
any securities pursuant to the Offer (the "Exchange Securities") and
either (i) the Exchange Securities have not been registered under the
Securities Act of 1933 or (ii) the Depositary has not received an
opinion of U.S. counsel to the Offeror in form reasonably acceptable
to the Depositary to the effect that the Exchange Securities may be
offered and sold in the United States without such registration, each
holder of Receipts will be deemed to have authorized and instructed
the Depositary to sell the Exchange Securities and distribute the net
proceeds to the holders of Receipts entitled thereto in such manner as
the Depositary deems fit, including, without limitation, requiring
each holder of Receipts to surrender its Receipt in order to receive
the payment to which it may be entitled.
If (x) the Exchange Securities have been registered under the
Securities Act of 1933 or the Depositary has received an opinion of
U.S. counsel to the Offeror in form reasonably acceptable to the
Depositary to the effect that the Exchange Securities may be offered
and sold in the United States without such registration, and (y) the
Exchange Securities are eligible for deposit into an American
depositary receipt facility of the Offeror (the "Offeror ADR
Facility"), each holder of Receipts will be deemed to have authorized
and instructed the Depositary to deposit the Exchange Securities into
the Offeror ADR Facility and to instruct the depositary for the
Offeror ADR Facility to execute and deliver to the Depositary American
depositary shares representing such Exchange Securities to be issued
under the Offeror ADR Facility (the "Offeror ADSs").
Upon settlement of the Offer, after receipt by the Depositary of
Offeror ADSs from the depositary for the Offeror ADR Facility, the
Depositary will deliver Offeror ADSs to the
6
holders of Receipts upon surrender of Receipts by such holders. It is
hereby acknowledged that during the period beginning at the Offer
Expiration Date until the time the Offeror ADSs are delivered to the
Depositary pursuant to the settlement of the Offer, it will not be
possible for the Depositary to deliver any Exchange Securities against
surrender of Receipts. Cash in lieu of fractional Offeror ADSs, if
any, will subsequently delivered by the Depositary."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to the Depositary and the holders of Receipts that:
(a) This Amendment, the Deposit Agreement and all other documentation
executed and delivered by the Company in connection therewith, have been duly
and 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;
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment, the Deposit Agreement or any
other document furnished hereunder or thereunder in the United Mexican States,
neither of such agreements need to be filed or recorded with any court or other
authority in the United Mexican States, nor does any stamp or similar tax or
governmental charge need to be paid in the United Mexican States 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, to the best of its knowledge after due
inquiry, true, accurate and correct.
ARTICLE V
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MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of the date (the "Effective Date") which
is 30 days from the date in which notice of the amendments set forth herein are
given to record holders of outstanding Receipts.
SECTION 5.02. Consent by Continuing Holders. Every holder of an outstanding
Receipt at the Effective Date shall be deemed, by continuing to hold such
Receipt, to consent and agree to this Amendment and to the bound by the Deposit
Agreement as amended hereby. In no event shall this Amendment impair the right
of the holder of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby.
SECTION 5.03. Outstanding Receipts. The Depositary shall not call in for
exchange any Receipts issued prior to the Effective Date that do not reflect the
changes to the form of Receipt effected hereby (as set forth in Exhibit A
hereto). Such Receipts shall be deemed amended to reflect such changes without
any action on the part of the holders of Receipts, the Company, the Depositary
or any other person or entity.
SECTION 5.04. Indemnification. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 5.08 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Amendment and the transactions contemplated herein.
SECTION 5.05. GOVERNING LAW. THIS AMENDMENT SHALL BE INTERPRETED AND ALL
RIGHTS AND OBLIGATIONS HEREUNDER AND THE PROVISIONS HEREOF SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK. IT IS UNDERSTOOD THAT NOTWITHSTANDING ANY
PRESENT OR FUTURE
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PROVISION OF THE LAWS OF THE STATE OF NEW YORK, THE RIGHTS OF THE HOLDERS OF
STOCK, AND THE DUTIES AND OBLIGATIONS OF THE COMPANY IN RESPECT OF SUCH HOLDERS
AS SUCH, SHALL BE GOVERNED BY THE LAWS OF THE UNITED MEXICAN STATES.
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 shall constitute one and the same instrument. Copies of this
Amendment and the Deposit Agreement shall be filed with the Depositary and the
Custodian and shall be open to inspection at the principal office of the
Depositary and main office of the Custodian by any record holder of the Receipt
during business hours.
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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.
Tubos xx Xxxxx de Mexico, S.A.
By .
---------------------------------
Name:
Title:
By .
---------------------------------
Name:
Title:
JPMorgan Chase Bank
By .
---------------------------------
Name:
Title:
A-1
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
For Stock of
TUBOS XX XXXXX DE MEXICO, S.A.
(Incorporated under the Laws of the United Mexican States)
No. __________American Depositary Shares
(Each such share representing five
shares of Stock, no par value)
(1) JPMORGAN CHASE BANK, as Depositary (herein called the Depositary),
hereby certifies that __________________ is the owner of _________ American
Depositary Shares, each representing one share of the Common Stock, no par value
(herein called "Stock"), of Tubos xx Xxxxx de Mexico, S.A., incorporated under
the laws of the United Mexican States (herein called the "Company"). Each such
American Depositary Share represents five shares of Stock at the date hereof,
deposited at the main office of Banco Nacional de Mexico, S.A., Mexico, D.F.,
Mexico (herein called the "Custodian"), as agent of the Depositary. Capitalized
terms used herein that are not defined herein shall have the meanings assigned
to them in the Deposit Agreement (hereinafter defined).
(2) The Deposit Agreement. This American Depositary Receipt is one of
a continuing issue provided by the Company for the convenience of its
non-resident shareholders generally evidencing rights of similar tenor with
respect to Stock deposited under, and all issued and to be issued upon the terms
and conditions set forth in, the Deposit Agreement dated as of January 1, 1964,
as amended and restated as of June 1, 1991, October 15, 1991, July 1, 1993 and
September 12, 1996 as amended as of July 9, 2001 and May , 2003 (as further
amended from time to time, herein called the Deposit Agreement), by and between
the Company, the Depositary, and all holders from time to time of Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and becomes bound by all the terms and provisions thereof. The Deposit
Agreement sets forth the rights of holders of the Receipts and the rights and
duties of the Depositary in respect of the Stock deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of any of such Stock and held thereunder (herein called Deposited
Securities). Copies of the Deposit Agreement are on file at the principal office
of the Depositary and the main office of the Custodian. The statements made on
the face and the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are subject to the detailed provisions of the Deposit
Agreement, to which reference is hereby made.
A-2
(3) Surrender of Receipts and Withdrawal of Stock. Upon surrender of
this Receipt at the office of the Depositary in the City of New York or at such
other offices as it may designate and upon payment of the fee of the Depositary
provided in paragraph (10) of this Receipt, and subject to the terms and
conditions of the Deposit Agreement, the holder hereof is entitled to delivery,
to him or upon his order, of the amount of Stock and any other Deposited
Securities at the time represented hereby. Delivery of such Stock and other
Deposited Securities may be made by the delivery of certificates to the holder
hereof or as ordered by him. Such delivery will be made without unreasonable
delay and, at the option of the holder hereof, either at the main office of the
Custodian or at the office of the Depositary, provided that the forwarding of
Stock certificates or other Deposited Securities for such delivery in The City
of New York shall be at the risk and expense of the holder hereof. Neither the
Depositary nor the Custodian shall deliver Deposited Securities to any person
except pursuant to this paragraph (3) or paragraphs (7), (9), (12), (15), (18)
or (19). Notwithstanding any provision of this Deposit Agreement or the
Receipts, the Depositary may restrict the withdrawal of Deposited Securities
only for the reasons set forth in General Instruction I.A.(l) of Form F-6 under
the Securities Act of 1933.
(4) Transfers of Receipts; Combinations and Split-ups. This Receipt is
transferable on the books of the Depositary by the holder hereof in person or by
duly authorized attorney, upon surrender of this Receipt properly endorsed or
accompanied by proper instruments of transfer and duly stamped. This Receipt may
be split into other Receipts or may be combined with other Receipts into one
Receipt, representing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered.
(5) Conditions to Execution and Delivery, Transfer, etc., of Receipts
or Distribution or Sale of Dividends or Rights. As a condition precedent to the
execution and delivery, transfer, split-up, combination or surrender of any
Receipt or, subject to the last sentence of paragraph (3) of this Receipt,
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require payment 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 registration fee with respect to
Stock being deposited or withdrawn) and payment of any applicable fees as
provided in paragraph (10) of this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary may
establish consistent with the provisions of the Deposit Agreement. Any person
presenting Stock for deposit, or any holder of a Receipt, may be required from
time to time to file such proof of citizenship or residence, exchange control
approval relating to the Stock presented for deposit or other matters or other
information and to execute such certificates and to make such representations
and warranties as the Depositary may deem necessary or proper. Subject to the
last sentence of paragraph (3) of this Receipt, the Depositary may withhold the
delivery or transfer of any Receipt or the distribution or sale of any dividend
or other distribution or 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 are made.
(6) Suspension of Delivery, Transfer, etc. The delivery of Receipts
against
A-3
deposits of Stock generally or against deposits of particular Stock may be
suspended, or the transfer of Receipts in particular instances may be refused,
or the transfer or, subject to the last sentence of paragraph (3) of this
Receipt, surrender of outstanding Receipts generally may be suspended, during
any period when the transfer books of the Depositary are closed, or if any such
action is deemed necessary or advisable by the Depositary or the Company 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 for any other reason. The Depositary may issue Receipts against
rights to receive shares of Stock from the Company, or any registrar, transfer
agent, clearing agency or other entity recording share ownership or
transactions. The Depositary may issue Receipts against other rights to receive
Stock only if (x) such other Receipts are fully collateralized (marked to market
daily) with cash or U.S. Government securities until such Stock is deposited,
(y) the applicant for such Receipts represents in writing that it owns such
Stock, has assigned all beneficial right, title and interest in such Stock to
the Depositary, and shall not dispose of such Stock other than in satisfaction
of the pre-release (no evidence of ownership is required or time of delivery
specified) and (z) all such Receipts represent not more than 20% of shares of
Stock actually deposited. Such collateral, but not the earnings thereon, will be
held for the benefit of the Holders. The Depositary may retain for its own
account any compensation for the issuance of Receipts against such other rights,
including without limitation earnings on the collateral securing such rights.
The Depositary will execute and deliver Receipts only in accordance with 2.03 of
the Deposit Agreement and paragraphs (4), (5), (12) and (15). Without limitation
of the foregoing, the Depositary will not knowingly accept for deposit under the
Deposit Agreement any Stock required to be registered under the Securities Act
of 1933, unless a registration statement is in effect as to such Stock. Neither
the Depositary nor the Custodian shall lend Deposited Securities.
(7) Liability of Holder for Taxes. If any tax or other governmental
charge shall become payable with respect to any Deposited Securities represented
hereby, such tax or other governmental charge shall be payable by the holder
hereof to the Depositary. The Depositary may refuse to effect any transfer of
this Receipt or any withdrawal of Deposited Securities represented 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 hereby, 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 record holder hereof remaining liable for any
deficiency.
(8) Warranties as to Stock. Every person depositing Stock under the
Deposit Agreement shall be deemed thereby to represent and warrant that such
Stock and each certificate therefor is validly issued, fully paid and
non-assessable, that the person making such deposit is duly authorized so to do
and that such shares of Stock (A) are not "restricted securities" as such term
is defined in Rule 144 under the Securities Act of 1933 and may be offered or
sold in the United States in transactions that are exempt from registration
under that Act or (B) have been registered under the Securities Act of 1933. The
Company represents and warrants that the Stock issuable upon conversion of the
Debentures pursuant to the Deposit Agreement and each certificate therefor will
be validly issued, fully paid and non-assessable. Such representations and
warranties shall survive the deposit of Stock or the issuance of Stock upon
conversion, as the case may be, and the issuance of Receipts in respect thereof.
A-4
(9) Amendment of Deposit Agreement. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than stock transfer or other taxes and other
governmental charges, transfer or registration fees, cable, telex or facsimile
transmission costs, delivery costs, and expenses of the Depositary in connection
with conversion of foreign currency into U.S. dollars), or which shall otherwise
prejudice any substantial existing right of holders of Receipts, shall not
become effective as to outstanding Receipts until the expiration of thirty days
after notice of such amendment shall have been given to the record holders of
outstanding Receipts. Every holder of an outstanding Receipt at the time any
such amendment so becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the holder hereof to surrender this Receipt and receive therefor the
Deposited Securities represented hereby.
(10) Charges of Depositary. The Company will pay the charges of the
Depositary for receiving deposits of Stock and issuing Receipts therefor as to
(i) deposits of Stock issued as a dividend or free distribution to the record
holders of Receipts entitled thereto, (ii) deposits by the Company of Stock
issued upon conversion of the Debentures and (iii) deposits of Stock issued upon
exercise of rights to subscribe for additional Stock made available to the
record holders of Receipts entitled thereto. As to all other deposits of Stock,
and as to all deliveries of Stock or other Deposited Securities upon surrender
of Receipts, the Depositary will charge the party depositing Stock or
surrendering Receipts $5 for each 100 American Depositary Shares (or portion
thereof) evidenced by the Receipt delivered or surrendered, as the case may be.
Additional charges and expenses of the Depositary (other than (a) stock transfer
and other taxes and other governmental charges (which are payable by holders of
Receipts or persons depositing Stock), (b) cable, telex and facsimile
transmission and delivery charges incurred at the request of persons depositing
Stock or holders of Receipts delivering Stock, Receipts or Deposited Securities
(which are payable by such person or holder of Receipts), (c) transfer or
registration fees for the registration of transfers of deposited Stock and other
Deposited Securities on any applicable register in the name of the Custodian or
its nominee in connection with the deposit of Stock or in the name of such
person as a holder of Receipts may direct in connection with any withdrawal of
Deposited Securities (which are payable by persons depositing Stock or holders
of Receipts withdrawing Deposited Securities; there are no such fees payable by
such persons or Holders in respect of Stock as of the date of the Deposit
Agreement), and (d) expenses of the Depositary in connection with the conversion
of foreign currency into dollars (which are paid out of such foreign currency)
will be paid upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such charges and expenses.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive holder hereof by accepting or holding the same consensus and agrees,
that title to this Receipt (and to the American Depositary Shares evidenced
hereby), when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument, provided, however, that until this Receipt shall be
transferred on the books of the Depositary as provided in the Deposit Agreement,
the Depositary, notwithstanding any notice to the contrary, may treat the record
holder hereof for the time being
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as the absolute owner hereof for the purpose of determining the person entitled
to distribution of dividends or other distributions or to any notice provided
for in the Deposit Agreement, and for all other purposes and neither the
Depositary nor the Company shall have any obligation or be subject to any
liability under the Deposit Agreement to any holder of A receipt unless such
holder is the owner thereof.
Dated:
JPMORGAN CHASE BANK, as Depositary
By
-------------------------------
Authorized Officer
The address of the Depositary's Office is 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Distributions. Whenever the Depositary shall receive any cash
dividend or other cash distribution on the Deposited Securities, the Depositary
will, if such cash is received in foreign currency and, if at the time of
receipt thereof any foreign currency amounts may in its judgment be converted
(at the official or other rate of exchange) on a reasonable basis into dollars
available to the Depositary in New York City, and subject to the provisions of
the Deposit Agreement, convert such dividend or distribution into United States
dollars and will distribute the amount thus received to the record holders of
Receipts entitled thereto, in proportion to the number of American Depositary
Shares held by them respectively, provided, however that the amount distributed
on any Receipt will be reduced by any amounts required to be withheld by the
Company or the Depositary on account of taxes in respect of the Deposited
Securities represented by such Receipt. If the Depositary shall determine that
in its judgment any foreign currency amounts may not be converted on a
reasonable basis into dollars available to it in New York City or if any
approval or license of any government or agency thereof which may be required
for such conversion is denied or in the opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency amounts received by the Depositary to the then record
holders of Receipts or hold such foreign currency amounts for the respective
accounts of such persons and distribute to them appropriate warrants or other
instruments evidencing their rights to receive such amounts. If any distribution
consists of a dividend in, or free distribution of, Stock, the Depositary may in
its discretion upon prior consultation with and approval of the Company
distribute to the record holders of outstanding Receipts entitled thereto,
proportionately as aforesaid, additional Receipts for an aggregate number of
American Depositary Shares representing the amount of Stock received as such
dividend or free distribution. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary may sell the amount
of Stock or American Depositary Shares represented by the aggregate of such
fractions and distribute the net proceeds to the record holders of Receipts
entitled thereto. Whenever the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional Stock
or any rights of any other nature, the Depositary shall have discretion as to
the procedure to be followed in making such rights available to the holders, in
disposing of such rights and distributing the net proceeds thereof as in the
case of a distribution received in cash pursuant to paragraph (12) or in
allowing such right to expire unexercised; provided that the Depositary shall,
if requested by the Company, subject to the Deposit Agreement, take action as
follows: (a) if at the time of the offering of any such rights the Depositary
determines that it is lawful and feasible to make such rights available to
holders by means of warrants or otherwise, the Depositary shall distribute such
warrants or other instruments therefor in such form as it may determine to the
Holders on a record date fixed pursuant to paragraph (13) of Receipts evidencing
American Depositary Shares representing such Deposited securities, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by each of them respectively, or employ such other method as it
may deem feasible in order to facilitate the exercise, sale or transfer of
rights by such holders; or (b) if at the time of issue of any such rights the
Depositary determines that it is not lawful or not feasible to make such rights
available to record holders of Receipts by the issue of warrants or
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otherwise, or if and to the extent so instructed by record holders of Receipts
who do not desire to exercise such rights, or if the rights represented by such
warrants or such other instruments are not exercised and appear to be about to
lapse, the Depositary in its discretion may sell such rights at public or
private sale, at such place or places and upon such terms as it may deem proper,
and may allocate the proceeds of such sales for 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 the net proceeds so allocated to the
extent practicable as in the case of a distribution received in cash pursuant to
paragraph (12) or (c) if such rights may not lawfully or feasibly be offered to
holders and if it is not practicable to sell such rights pursuant to clause (b),
the Depositary shall allow such rights to expire unexercised. The Depositary
will not offer such rights to holders having an address in the United States,
unless the Company furnishes to the Depositary (i) evidence that a registration
statement under the Securities Act of 1933 covering such offering is in effect
or (ii) an opinion of counsel for the Company in the United States satisfactory
to the Depositary to the effect that such offering does not require registration
under the Securities Act of 1933. Whenever the Depositary or the Custodian shall
receive any distribution other than cash, Shares or rights upon any Deposited
Securities, subject to this Deposit Agreement, the Depositary shall cause
securities or property to be distributed to the holders on a record date fixed
pursuant to paragraph (13) of Receipts evidencing American Depositary Shares
representing such Deposited securities, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided that if in the opinion
of the Depositary such distribution cannot be made proportionately among the
holders entitled thereto, or if for any other reason (including any tax
withholding or securities laws requirement) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, and the distribution by the Depositary to
the holders of cash pursuant to paragraph (12).
(13) Fixing of Record Date. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued, with respect to the Deposited
securities, or whenever the Depositary shall receive notice of any meeting of
holders of Stock or other Deposited Securities, the Depositary will, subject to
the provisions of the Deposit Agreement, fix a record date for the determination
of the holders of Receipts who shall be entitled to receive such dividend,
distribution or rights, or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting.
(14) Voting Rights. Upon receipt of notice of any meeting or
solicitation of consents or proxies of holders of Stock or other Deposited
Securities, the Depositary will, as soon as practicable thereafter, mail to the
record holders of Receipts having the right to vote a notice which will contain
(a) such information as is contained in such notice of meeting or in the
solicitation materials, if any, and (b) a statement that the record holders of
Receipts at the close of business on a specified record date will be entitled,
subject to any applicable provisions of law and of the Articles of Incorporation
of the Company, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Stock or other Deposited securities
represented
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by their respective American Depositary Shares, and (c) a brief statement as to
the manner in which such instructions may be given, including an express
indication that instructions may be given (or be deemed given in accordance with
the last sentence of this paragraph (14) if no instruction is received) to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of a record holder of a Receipt on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary will endeavor insofar as practicable to vote or cause to be voted
the amount of Stock or other Deposited Securities represented by such Receipt in
accordance with the instructions set forth in such request. The Depositary shall
not itself exercise any voting discretion over any Deposited Securities. If no
instructions are received by the Depositary from any holder with respect to any
of the Deposited Securities represented by the American Depositary Shares
evidenced by such holder's Receipts on or before the date established by the
Depositary for such purpose, the Depositary shall deem such holder to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Company with respect to such Deposited Securities and the Depositary
shall give a discretionary proxy to a person designated by the Company to vote
such Deposited Securities.
(15) Changes Affecting Deposited Securities. Upon any change in par
value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
the Depositary may in its discretion with the approval of the Company, and in
such manner as the Depositary may deem equitable, treat any securities which
shall be received by the Depositary in exchange for or in conversion of or in
respect of Deposited Securities as new Deposited Securities under the Deposit
Agreement, and Receipts then outstanding shall thenceforth represent the new
Deposited Securities so received in exchange or conversion. In any such case the
Depositary may in its discretion, with the approval of the Company, execute and
deliver additional Receipts as in the case of a Stock dividend, or may call for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
(16) Reports; Inspection of Transfer Books. The Depositary will make
available for inspection by holders of Receipts at its principal office and will
mail to the principal office of the Securities and Exchange Commission,
Washington, D.C., any reports and communications, including any proxy soliciting
material, received from the Company which are both (a) received by the
Depositary or the Custodian as the holder of the Deposited Securities, and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary will also send to record holders of Receipts copies of
such reports when furnished by the Company as provided in the Deposit Agreement.
The Depositary will keep books for the transfer of Receipts which at all
reasonable times will be open for inspection by the record holders of Receipts
and the Company, provided that such inspection shall not be for the purpose of
communicating with holders of Receipts 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.
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(17) Liability of the Company and Depositary. Neither the Depositary,
its agents nor the Company shall incur any liability to any holder of this
Receipt, if by reason of any provision of any present or future law or
regulation of the United States or the United Mexican States or any other
country, or of any other governmental authority, or by reason of any provision,
present or future, of the Articles of Incorporation of the Company, or by reason
of any act of God or war or other circumstance beyond its control, the
Depositary or the Company shall be prevented or forbidden from doing or
performing any act or thing which by the terms of the Deposit Agreement it is
provided shall be done or performed; nor shall the Depositary, its agents or the
Company incur any liability to any holder hereof by reason of any
non-performance or delay, caused as aforesaid, in performance of 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. Neither the Depositary, its
agents nor the Company assumes any obligation or shall be subject to any
liability under the Deposit Agreement to holders of Receipts other than that
each of them agrees to use its best judgment and good faith in the performance
of such duties as are specifically set forth in the Deposit Agreement. Neither
the Depositary, its agents nor the Company shall be 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 and liability be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary, its agents nor the Company shall be liable for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Stock for deposit, any holder
of a Receipt, or any other person believed by it in good faith to be competent
to give such advice or information, or for any translation of any notice, report
or other document made by a translator believed by it to be competent. The
Depositary or the Company may rely and shall be protected in acting upon any
written notice, request, direction, or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties. The
Depositary and its agents will not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith. The Company will indemnify the Depositary against and hold it
harmless from, any liability which may arise out of acts performed or omitted,
in accordance with the provisions of the Deposit Agreement and of the Receipts,
(1) by the Company or any of its agents, or (2) by either the Depositary or its
agents except for any liability arising out of the negligence or bad faith of
the Depositary or it agents. The Depositary will indemnify the Company against,
and hold it harmless from, any liability which may arise out of acts performed
or omitted by the Depositary or its Custodian due to their negligence or bad
faith. The Depositary may own and deal in any class of securities of the Company
and its affiliates and in Receipts. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof or of the Deposit
Agreement.
(18) Resignation and Removal of Depositary; Substitution of Custodian.
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 and to the
Trustee for the Debentures, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. The Depositary may at any time be removed by written
notice of such removal delivered to the Depositary and to the Trustee for the
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Debentures, such removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. In the case of such resignation or removal, the Company shall, within
thirty days after the delivery of the notice thereof, appoint a successor
depositary. A substitute custodian may be appointed at any time as provided in
the Deposit Agreement.
(19) Termination of Deposit Agreement. The Depositary may, and shall
at the written direction of the Company, terminate the Deposit Agreement and the
Receipts by mailing notice of such termination to the record holders of all
Receipts at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and its
agents will perform no further acts under the Deposit Agreement and the
Receipts, except to receive and hold (or sell) distributions on Deposited
Securities and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the pro rata
benefit of the holders of Receipts entitled thereto which have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations in respect of the Deposit Agreement and the Receipts,
except to account for such net proceeds and other cash. After the date so fixed
for termination, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary and its agents.
(20) Governing Law. This Receipt shall be interpreted and all rights
hereunder and provisions hereof shall be governed by the laws of the State of
New York. It is understood that notwithstanding any present or future provision
of the laws of the State of New York, the rights of holders of Stock, and the
duties and obligations of the Company in respect of such holders, as such, shall
be governed by the laws of the United Mexican States.
(21) Available Information. The company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and accordingly
files certain reports with the Securities and Exchange Commission. Such reports
and other information may be inspected and copied at the public reference
facilities maintained by the commission and located at the date of the Deposit
Agreement at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
Such reports and documents, and all reports and communications referred to in
paragraph (16), shall be in English to the extent required under Rules 12b-12(d)
or 12g3-2(b) under the Securities Exchange Act of 1934 or otherwise under such
Act, and to the extent any such notice, report or communication has been
translated by the Depositary.
(22) Disclosure of Interest. The Company may from time to time request
holders to provide information as to the capacity in which such holders own or
owned 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 information requested
by the Company or the Depositary pursuant to this paragraph (22). The Depositary
agrees to comply with reasonable written instructions reasonably given by the
Company requesting that the Depositary forward any such requests to the holders
and to forward to the Company any such responses to such requests received by
the Depositary.
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"(23) Offer by Tenaris S.A. or an Affiliate thereof. If at any time
after May 31, 2003, Tenaris S.A., a company organized under the laws of
Luxembourg, or any affiliate thereof (collectively, the "Offeror"), makes
anywhere in the United Mexican States or the United States one or more public
tender or exchange offers or any other public transaction aimed at acquiring all
or part of the Company's American Depositary Shares (such offer or other
transaction, an "Offer"), each holder of Receipts outstanding on the expiration
date of the Offer as set forth in the prospectus or other offering materials for
the Offer (such date, as extended in accordance with applicable law, the "Offer
Expiration Date") will be deemed to have authorized and instructed the
Depositary to accept the Offer on its behalf and to tender into the Offer any
and all of such holder's American Depositary Shares, and, unless otherwise
instructed by the Company, the Depositary shall, subject to applicable law and
the terms of the Offer, so tender such American Depositary Shares on behalf of
such holder without any notice to, or action on the part of, the holders of
Receipts, the Company or any other person or entity. In no event shall the
provisions of this Section 7.07 impair the right of the holder of any Receipt to
surrender such Receipt and receive therefore the Deposited Securities
represented thereby in accordance with Section 2.05.
If the Depositary receives, on behalf of the holders of Receipts,
any securities pursuant to the Offer (the "Exchange Securities") and either (i)
the Exchange Securities have not been registered under the Securities Act of
1933 or (ii) the Depositary has not received an opinion of U.S. counsel to the
Offeror in form reasonably acceptable to the Depositary to the effect that the
Exchange Securities may be offered and sold in the United States without such
registration, each holder of Receipts will be deemed to have authorized and
instructed the Depositary to sell the Exchange Securities and distribute the net
proceeds to the holders of Receipts entitled thereto in such manner as the
Depositary deems fit, including, without limitation, requiring each holder of
Receipts to surrender its Receipt in order to receive the payment to which it
may be entitled.
If (x) the Exchange Securities have been registered under the
Securities Act of 1933 or the Depositary has received an opinion of U.S. counsel
to the Offeror in form reasonably acceptable to the Depositary to the effect
that the Exchange Securities may be offered and sold in the United States
without such registration, and (y) the Exchange Securities are eligible for
deposit into an American depositary receipt facility of the Offeror (the
"Offeror ADR Facility"), each holder of Receipts will be deemed to have
authorized and instructed the Depositary to deposit the Exchange Securities into
the Offeror ADR Facility and to instruct the depositary for the Offeror ADR
Facility to execute and deliver to the Depositary American depositary shares
representing such Exchange Securities to be issued under the Offeror ADR
Facility (the "Offeror ADSs").
Upon settlement of the Offer, after receipt by the Depositary of
Offeror ADSs for the depositary for the Offeror ADR Facility, the Depositary
will deliver Offeror ADSs to the holders of Receipts upon surrender of Receipts
by such holders. It is hereby acknowledged that during the period beginning at
the Offer Expiration Date until the time the Offeror ADSs are delivered to the
Depositary pursuant to the settlement of the Offer, it will not be possible for
the
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Depositary to deliver any Exchange Securities against surrender of Receipts.
Cash in lieu of fractional Offeror ADSs, if any, will subsequently delivered by
the Depositary."
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