EXECUTION COPY
MANUFACTURAS DE PAPEL, C.A. (MANPA), S.A.C.A.
AV. ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ CON
CALLE EL PARQUE
TORRE COUNTRY CLUB
PISO 11 CHACAITO
CARACAS 1050
VENEZUELA
As of April 24, 2007
Citibank, N.A. - ADR Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Restricted ADSs (Cusip # ▇▇▇▇▇▇▇▇▇)
Ladies and Gentlemen:
Reference is made to the Deposit Agreement, dated as of June 11,
1996, (the "Deposit Agreement"), by and among Manufacturas de Papel, C.A.
(MANPA), S.A.C.A., a company organized under the laws of Venezuela (the
"Company"), Citibank, N.A., as Depositary (the "Depositary"), and the Holders
and Beneficial Owners of American Depositary Receipts (the "ADRs") issued
thereunder. All capitalized terms used, but not otherwise defined herein, shall
have the meaning assigned thereto in the Deposit Agreement.
Certain owners of the Company's (the "Share Owners") common shares,
par value ten Bolivars (Bs. 10.00) (the "Shares") that constitute "Restricted
Securities" (as hereinafter defined and hereinafter used as so defined) have
requested that the Company establish a procedure to enable the Share Owners to
hold such Shares in the form of American Depositary Shares ("ADSs"). The Company
is willing to accommodate such request of the Share Owners provided (a) the
terms of deposit of the Shares by the Share Owners neither (i) prejudice any
substantial rights of existing Holders and Beneficial Owners of ADSs under the
Deposit Agreement nor (ii) violate or conflict with any law, rule or
administrative position applicable to the ADSs, and (b) the Depositary agrees to
supplement the terms of the Deposit Agreement to accommodate a deposit of Shares
by the Share Owners.
The purpose and intent of this Letter Agreement (the "Letter
Agreement") is to supplement the Deposit Agreement for the purpose of
accommodating (i) the issuance of Restricted ADSs (as hereinafter defined and
hereinafter used as so defined) at the request of the Company from time to time,
(ii) the transfer and sale of Restricted ADSs and (iii) certain ancillary
transactions further described below. The Company and the Depositary agree that
this Letter Agreement shall be filed as an exhibit under Item 3(c) of Form F-6
under the Securities Act of 1933, as amended (the "Securities Act"), to the next
Registration Statement on Form F-6 filed with the Securities and Exchange
Commission (the "Commission") in respect of the ADSs after the execution of this
Letter Agreement).
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Depositary hereby agree,
notwithstanding the terms of the Deposit Agreement, as follows:
1. Authority to Issue Restricted ADSs. The Deposit Agreement is
hereby supplemented to authorize the Depositary to establish under the terms of
the Deposit Agreement and upon the written request and at the expense of the
Company, procedures enabling the deposit of Shares that are "Restricted
Securities" to permit the holders of such Shares to hold their ownership
interests in such restricted Shares in the form of ADSs issued under the terms
of the Deposit Agreement as supplemented hereby (such Shares, the "Restricted
Shares"). The Depositary agrees to establish procedures permitting the deposit
of Restricted Shares into the depositary receipts facility and the issuance of
ADSs representing deposited Restricted Shares (such ADSs, the "Restricted ADSs,"
and the ADRs evidencing such Restricted ADSs, the "Restricted ADRs"), upon
receipt of a written request from the Company to accept certain specified
Restricted Shares for deposit or as otherwise set forth in this Agreement. The
Company agrees to assist the Depositary in the establishment of such procedures
and agrees that it shall take all steps reasonably requested by the Depositary
to ensure that the establishment of such procedures does not prejudice any
substantial rights of existing Holders and Beneficial Owners of ADSs and does
not violate the provisions of the Securities Act or any other applicable laws,
rules or administrative positions applicable to ADSs including, without
limitation, by entering into letter agreements with the Depositary to set forth
the specific terms of the procedures applicable to any specific deposit of
Restricted Shares and issuance and transfer of Restricted ADSs.
Notwithstanding any other provisions of this Letter Agreement, the
depositors of the Restricted Shares and the holders of the Restricted ADSs may
be required to provide such additional written certifications, agreements or
other documents as the Depositary or the Company may deem reasonably necessary
or reasonably appropriate prior to (i) the deposit of Restricted Shares, (ii)
the transfer and sale of the Restricted ADRs and the Restricted ADSs evidenced
thereby, (iii) the removal of the transfer and other restrictions with respect
to Restricted ADSs/Restricted ADRs in order to create unrestricted ADSs/ADRs, or
(iv) the withdrawal of the Restricted Shares represented by Restricted ADSs. The
Company shall provide to the Depositary in writing the legend(s) to be affixed
to the Restricted ADRs, which legend(s) shall (i) be in a form reasonably
satisfactory to the Depositary and (ii) set forth the specific circumstances
under which the Restricted ADRs and the Restricted ADSs evidenced thereby may be
transferred or sold, and the Restricted Shares withdrawn.
The Restricted ADSs issued upon the deposit of Restricted Shares
shall be separately identified on the books of the Depositary under a unique
CUSIP number and the Restricted Shares so deposited shall be held separate and
distinct by the Custodian from all other Deposited Securities held under the
terms of the Deposit Agreement by the Custodian in respect of the ADSs issued
under the Deposit Agreement that are not Restricted Shares. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions set forth in Section 5.10 of the Deposit Agreement. Notwithstanding
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any other provisions of this Letter Agreement or any provisions of the Deposit
Agreement to the contrary, each of the Restricted ADRs evidencing Restricted
ADSs will be substantially in the form attached hereto as Exhibit A (the "Form
of Restricted ADR"), and shall be registered initially in the name of the Share
Owner or a person designated by the Share Owner to hold the Restricted ADR for
the benefit of the such Share Owner, except, in each case, as the Depositary and
the Company may otherwise agree in writing. The Restricted ADSs shall not be
eligible for inclusion in any book-entry settlement system, including, without
limitation, The Depository Trust Company ("DTC"). The Restricted ADSs shall not
in any way be fungible with the ADSs (that are not Restricted ADSs) issued under
the terms of the Deposit Agreement. Except as set forth in this Letter Agreement
and except as required by applicable law, the Restricted ADRs and the Restricted
ADSs evidenced thereby shall be subject to the terms of the Deposit Agreement
and shall, to the maximum extent permitted by law and to the maximum extent
practicable, be treated as ADRs and ADSs, respectively, issued and outstanding
under, the terms of the Deposit Agreement. In the event that, in determining the
rights and obligations of parties hereto or any Holder or Beneficial Owner of
Restricted ADSs, any conflict arises between (a) the terms of the Deposit
Agreement and (b) the terms of (i) this Letter Agreement or (ii) the applicable
Restricted ADR, the terms and conditions set forth in this Letter Agreement and
of the applicable Restricted ADR shall be controlling and shall govern the
rights and obligations of the parties pertaining to the deposited Restricted
Shares, the applicable Restricted ADSs and the applicable Restricted ADRs.
The term "Restricted Securities" when used herein shall mean Shares
(and any ADSs representing such Shares) which (i) have been acquired directly or
indirectly from the Company or any of its Affiliates (as defined in Rule 144
under the Securities Act and hereinafter used as so defined) in a transaction or
chain of transactions not involving any public offering and are subject to
resale limitations under the Securities Act or the rules issued thereunder, or
(ii) are held by an officer or director (or persons performing similar
functions) or other Affiliate of the Company, or (iii) are subject to other
restrictions on sale or deposit, including, without limitation, restrictions on
sale or deposit under the laws of the United States, Venezuela, or under any
agreement applicable to the Shares and/or to the owner of such Shares, or the
Articles of Association or By-Laws of the Company or under the regulations of an
applicable securities exchange unless, in each case, such Shares (and any ADSs
representing such Shares) are being transferred or sold to persons other than an
Affiliate of the Company in a transaction (a) covered by an effective
registration statement under the Securities Act, or (b) exempt from the
registration requirements of the Securities Act, and the Shares (and any ADSs
representing such Shares) are not, when held by such person(s), otherwise
Restricted Securities.
2. Share Owner Deposits. The Company hereby consents, under Section
2.02 of the Deposit Agreement and Section 1 of this Letter Agreement, to the
deposit by Share Owners listed on Exhibit B hereto as the same may be amended
from time to time by agreement of the parties hereto (the "Initial Share
Owners") of the number of Shares listed opposite each Initial Share Owner's name
on Exhibit B hereto as the same may be amended from time to time by agreement of
the parties hereto and the issuance and delivery by the Depositary of the
corresponding number of Restricted ADSs in respect thereof, upon the terms of
this Letter Agreement, to the Initial Share Owners or their respective nominees
specified on Exhibit B hereto as the same may be amended from time to time by
agreement of the parties hereto. The Restricted ADSs described in the
immediately preceding sentence, the Restricted Shares represented thereby the
Restricted ADRs evidencing such Restricted ADSs and the Initial Share Owners
specified on Exhibit B hereto are referred to herein as the "Designated
Restricted ADSs", the "Designated Shares," the "Designated Restricted ADRs" and
the "Designated Shareholders", respectively.
3
In furtherance of the foregoing, the Company requests the
Depositary, and the Depositary agrees upon the terms and subject to the
conditions set forth in this Letter Agreement, to (i) establish procedures to
enable (x) the deposit of the Designated Shares with the Custodian by Initial
Share Owners (or their designees) in order to enable the issuance and delivery
by the Depositary to Initial Share Owners (or their designees) of the Designated
Restricted ADRs evidencing Designated Restricted ADSs issued under the terms of
this Letter Agreement, and (y) the transfer of the Designated Restricted ADSs,
the removal of the transfer and other restrictions with respect to Designated
Restricted ADSs in order to create unrestricted ADSs, and the withdrawal of the
Shares, in each case upon the terms and conditions set forth in the Deposit
Agreement as supplemented by the terms of this Letter Agreement, and (ii) issue
Designated Restricted ADRs evidencing such Designated Restricted ADSs and to
deliver the Designated Restricted ADRs, in each case upon the terms set forth
herein, including, without limitation, the terms and conditions set forth in
Section 1 hereof.
3. Company Assistance. The Company agrees to (i) provide
commercially reasonable assistance upon the request of and to the Depositary in
the establishment of such procedures to enable the acceptance of the deposit by
the Initial Share Owners of the Designated Restricted Shares, the issuance of
the Designated Restricted ADSs to the Initial Share Owners or their respective
designees, the delivery of Designated Restricted ADRs to the Initial Share
Owners, or their respective designees, the transfer of Designated Restricted
ADSs by the Initial Share Owners, the removal of the transfer and other
restrictions with respect to Designated Restricted ADSs in order to create
unrestricted ADSs, and the withdrawal of the Designated Restricted Shares, and
(ii) take all commercially reasonable steps requested by the Depositary to
ensure that the acceptance of the deposit of the Designated Restricted Shares,
the issuance of the Designated Restricted ADSs, the issuance and delivery of the
Designated Restricted ADRs, the transfer of the Designated Restricted ADSs, the
removal of the transfer and other restrictions with respect to Designated
Restricted ADSs in order to create unrestricted ADSs, and the withdrawal of
Designated Restricted Shares, in each case upon the terms and conditions set
forth herein, do not prejudice any substantial existing rights of Holders and
Beneficial Owners of ADSs and do not violate the provisions of the Securities
Act or any other applicable laws, rules or administrative positions.
In furtherance of the foregoing, at the time of the execution of
this Letter Agreement, the Company shall cause (A) its U.S. counsel to deliver
an opinion to the Depositary stating, inter alia, that the issuance and delivery
of Designated Restricted ADSs to Initial Share Owners (or their designees), upon
the terms contemplated herein, does not require registration under the
Securities Act, and (B) its Venezuelan counsel to deliver an opinion to the
Depositary stating, inter alia, that (i) the Company has duly authorized,
executed and delivered the Letter Agreement, (ii) the Letter Agreement is a
legal valid and binding agreement of the Company enforceable against the Company
upon its terms, (iii) none of the terms of the Letter Agreement, and none of the
transactions contemplated herein violate any Venezuelan law or regulation or any
order, judgment or proceeding which is binding upon the Company, (iv) none of
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the terms of the Letter Agreement, and none of the transactions contemplated
herein, conflict with any agreement to which the Company is a party, (v) the
Shares being deposited are free of all liens, security interests and
encumbrances that have been noted in the Company's share register, and (vi) all
governmental approvals, permits, consents and authorizations required to be
obtained by the Company in Venezuela for the transactions contemplated in the
Letter Agreement have been obtained and are in full force and effect.
4. Limitations on Issuance of Designated Restricted ADSs. In
connection with the transaction contemplated in Section 2 above, the Company
hereby instructs the Depositary, and the Depositary agrees, upon the terms and
subject to the conditions set forth in this Letter Agreement, to issue and
deliver Designated Restricted ADSs only (x) upon receipt of (i) the requisite
number of Designated Shares, (ii) the opinions of counsel identified in Section
3 hereof, and (iii) payment of the applicable fees, taxes and expenses otherwise
payable under the terms of the Deposit Agreement upon the deposit of Shares and
the issuance of ADSs, and (y) in the event of any corporate action of the
Company which results in the issuance of Restricted ADSs to the Holder(s) of the
Designated Restricted ADSs.
The Designated Restricted ADSs issued upon the deposit of Designated
Shares shall be separately identified on the books of the Depositary under CUSIP
# ▇▇▇▇▇▇▇▇▇ and the Designated Shares shall be held separate and distinct by the
Custodian from the other Deposited Securities held by the Custodian in respect
of the ADSs issued under the Deposit Agreement that are not Designated
Restricted ADSs.
5. Stop Transfer Notation and Legend. The books of the Depositary
shall identify the Designated Restricted ADSs as "restricted" and shall contain
a "stop transfer" notation to that effect. The Designated Restricted ADRs shall
contain the following legend:
THIS RESTRICTED AMERICAN DEPOSITARY RECEIPT ("RESTRICTED ADR"), THE
RESTRICTED AMERICAN DEPOSITARY SHARES ("RESTRICTED ADSs") EVIDENCED
THEREBY AND THE UNDERLYING RESTRICTED SHARES ("RESTRICTED SHARES")
OF THE COMPANY ARE SUBJECT TO THE TERMS OF THE LETTER AGREEMENT,
DATED AS OF APRIL 24, 2007 (THE "LETTER AGREEMENT") AND THE DEPOSIT
AGREEMENT, DATED AS OF JUNE 11, 1996, (THE "DEPOSIT AGREEMENT"). ALL
TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL, UNLESS OTHERWISE
SPECIFICALLY DESIGNATED HEREIN, HAVE THE MEANING GIVEN TO SUCH TERMS
IN THE DEPOSIT AGREEMENT.
HOLDERS AND BENEFICIAL OWNERS OF THE RESTRICTED ADSs EVIDENCED BY
THIS RESTRICTED ADR BY ACCEPTING AND HOLDING THE RESTRICTED ADSs
SHALL BE BOUND BY THE TERMS OF THE DEPOSIT AGREEMENT AND THE LETTER
AGREEMENT. THESE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B)
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES.
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PRIOR TO THE WITHDRAWAL OF THE RESTRICTED SHARES, A HOLDER OF
RESTRICTED ADSs WILL BE REQUIRED TO PROVIDE TO THE DEPOSITARY AND TO
THE COMPANY A WITHDRAWAL CERTIFICATION IN THE FORM ATTACHED TO THE
LETTER AGREEMENT. THE TRANSFER AND OTHER RESTRICTIONS SET FORTH
HEREIN AND IN THE LETTER AGREEMENT SHALL REMAIN APPLICABLE WITH
RESPECT TO THESE SECURITIES UNTIL SUCH TIME AS THE PROCEDURES SET
FORTH IN THE LETTER AGREEMENT FOR REMOVAL OF RESTRICTIONS ARE
SATISFIED. THE COMPANY AND THE DEPOSITARY SHALL BE ENTITLED TO
RECEIVE FROM THE HOLDER OF THE RESTRICTED ADSs SEEKING TO SELL,
PLEDGE OR OTHERWISE TRANSFER OR DELIVER THE RESTRICTED ADSs AN
OPINION OF QUALIFIED COUNSEL SATISFACTORY TO THE DEPOSITARY AND THE
COMPANY THAT THE TRANSFER RESTRICTIONS APPLICABLE TO THE RESTRICTED
ADSs HAVE BEEN OR ARE BEING SATISFIED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE
UNDERLYING SHARES MAY NOT BE DEPOSITED INTO ANY DEPOSITARY RECEIPT
FACILITY ESTABLISHED OR MAINTAINED BY A DEPOSITARY BANK OTHER THAN A
RESTRICTED DEPOSITARY RECEIPT FACILITY, UNLESS AND UNTIL SUCH TIME
AS SUCH SHARES ARE NO LONGER RESTRICTED SECURITIES (AS DEFINED IN
THE LETTER AGREEMENT). NEITHER THE COMPANY NOR THE DEPOSITARY MAKES
ANY REPRESENTATION AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT FOR RESALE OF THE RESTRICTED
SHARES OR THE RESTRICTED AMERICAN DEPOSITARY SHARES. A COPY OF THE
DEPOSIT AGREEMENT AND OF THE LETTER AGREEMENT MAY BE OBTAINED FROM
THE DEPOSITARY OR THE COMPANY UPON REQUEST."
6. Limitations on Transfer of Designated Restricted ADSs. The
Designated Restricted ADR(s) and the Designated Restricted ADSs evidenced
thereby, shall be transferable by the Holder thereof, only upon delivery to the
Depositary of (i) all documentation otherwise contemplated by the Deposit
Agreement, (ii) an opinion of the applicable Holder's U.S. counsel reasonably
satisfactory to the Depositary stating that, inter alia, the requested transfer
is in accordance with the conditions upon which the Designated Restricted ADR
is, and the Designated Restricted ADSs evidenced thereby are, transferable by
the Holder thereof under applicable securities laws and the transfer
restrictions contained in the legend set forth on the Designated Restricted ADR
presented for transfer, and (iii) payment of all standard fees related to the
transfer of an ADR under the Deposit Agreement.
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7. Limitations On Cancellation of Designated Restricted ADSs. The
Company instructs the Depositary, and the Depositary agrees not to release any
Designated Restricted Shares or cancel any Designated Restricted ADSs for the
purpose of withdrawing the underlying Designated Restricted Shares unless (x)
the conditions applicable to the withdrawal of Shares from the depositary
receipts facility created pursuant to the terms of the Deposit Agreement have
been satisfied (except for any conditions relating to the Shares not being
Restricted Securities) including, without limitation, the Depositary's receipt
of the Designated Restricted ADRs (duly endorsed and accompanied by the
requisite signature guarantees, if so required under the terms of the Deposit
Agreement) evidencing such Designated Restricted ADSs and the applicable ADS
cancellation fees payable under the terms of the Deposit Agreement and (y) the
Depositary shall have received from the person requesting the withdrawal of the
Designated Restricted Shares a duly completed and signed Withdrawal
Certification substantially in the form attached hereto as Exhibit C (such
certification, a "Withdrawal Certification").
8. Fungibility. Except as contemplated herein and except as required
by applicable law, the Designated Restricted ADRs evidencing the Designated
Restricted ADSs and the Designated Restricted ADSs shall, to the maximum extent
permitted by law and to the maximum extent practicable, be treated as ADSs
issued and outstanding under the terms of the Deposit Agreement that are not
Designated Restricted ADRs and Designated Restricted ADSs, respectively. Nothing
contained herein shall obligate the Depositary to treat Holders of Designated
Restricted ADSs on terms more favorable than those accorded to Holders of ADSs
under the Deposit Agreement.
9. Certain Fees. In connection with the establishment and
maintenance by the Depositary of the Restricted ADS facility contemplated
herein, the Company and the Depositary have entered into a separate arrangement
covering the Depositary's fees and reimbursable expenses.
10. Removal of Restrictions. The Company may instruct the Depositary
from time to time in writing that some or all of the Designated Restricted ADSs
no longer constitute Restricted Securities. The Depositary shall remove all stop
transfer notations from its records in respect of specified Designated
Restricted ADSs and shall treat such Designated Restricted ADSs on the same
terms as the ADSs outstanding under the terms of the Deposit Agreement that are
not Restricted ADSs upon receipt of (x) written instructions from the Company to
do so, and (y) an opinion of U.S. counsel to the Company stating, inter alia,
that, the removal of distinctions between the Designated Restricted ADSs and the
ADSs does not violate U.S. securities laws. Upon (i) receipt of such
instructions and opinion of counsel or (ii) receipt of evidence reasonably
satisfactory to the Depositary that the transfer of certain Designated
Restricted ADSs is covered by an effective registration statement under the
Securities Act, the Depositary shall take all actions necessary to remove any
distinctions previously existing between the applicable Designated Restricted
ADSs and the ADSs that are not Restricted ADSs, including, without limitation,
by removing the stop transfer notations on its records in respect of the
applicable ADSs previously identified as Designated Restricted ADSs.
11. Representations and Warranties. The Company hereby represents
and warrants that (a) the Designated Shares being deposited by the Initial Share
Owners for the purpose of the issuance of Designated Restricted ADSs are validly
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issued, fully paid and non-assessable, and free of any preemptive rights of the
holders of outstanding Shares, and (b) the Designated Shares are of the same
class as, and rank pari passu with, the other Shares on deposit under the
Deposit Agreement. Such representations and warranties shall survive the deposit
of the Designated Shares and the issuance of Designated Restricted ADSs.
12. Indemnity. Each of the Company and the Depositary acknowledges
and agrees that the indemnification and other provisions of Section 5.08 of the
Deposit Agreement shall apply to the acceptance of Restricted Shares, including,
without limitation, Designated Shares for deposit, the issuance of Restricted
ADSs, including, without limitation, Designated Restricted ADSs, the delivery of
Restricted ADRs, including, without limitation, the Designated Restricted ADRs,
the transfer of such Restricted ADRs and of the Restricted ADSs evidenced
thereby, the addition/removal of the transfer and other restrictions set forth
herein with respect to ADSs/ADRs/Restricted ADSs/Restricted ADRs, and the
withdrawal of Restricted Shares, in each case upon the terms set forth herein,
as well as to any other acts performed or omitted by the Depositary as
contemplated by this Letter Agreement.
This Letter Agreement shall be interpreted and all the rights and
obligations hereunder shall be governed by the laws of the State of New York
without regard to the principles of conflicts of law thereof.
The Company and the Depositary have caused this Letter Agreement to
be executed and delivered on their behalf by their respective officers thereunto
duly authorized as of the date set forth above.
CITIBANK, N.A.
as Depositary
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Date: April 24, 2007
MANUFACTURAS DE PAPEL, C.A. MANUFACTURAS DE PAPEL, C.A.
(MANPA), S.A.C.A. (MANPA), S.A.C.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ V. By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ T.
---------------------------- ---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ V. Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ T.
Title: Corporate V.P. of Finance Title: Executive Vice President
Date: Date:
8
EXHIBITS
A Form of Restricted ADR
B Initial Share Owners
C Withdrawal Certification
9
EXHIBIT A
to
Letter Agreement, dated as of
April 24, 2007
(the "Letter Agreement"), by and between
Manufacturas de Papel, C.A. (MANPA), S.A.C.A.
and
Citibank, N.A.
_____________________
FORM OF RESTRICTED ADR
_____________________
Exh. A-1
CUSIP Number ▇▇▇▇▇▇▇▇▇
Restricted American Depositary
Shares (1 Restricted American
Depositary Share
representing twenty-five
Fully Paid common shares, each of
Par Value of Ten Bolivars (Bs. 10.00)
EXHIBIT A
Number [FORM OF FACE OF RECEIPT]
RESTRICTED AMERICAN DEPOSITARY RECEIPT FOR
RESTRICTED AMERICAN DEPOSITARY SHARES
representing
RESTRICTED DEPOSITED COMMON SHARES
of
Manufacturas de Papel, C.A. (MANPA), S.A.C.A.
(Incorporated under the laws of
the Republic of Venezuela)
THIS RESTRICTED AMERICAN DEPOSITARY RECEIPT ("RESTRICTED ADR"), THE
RESTRICTED AMERICAN DEPOSITARY SHARES ("RESTRICTED ADSs") EVIDENCED
THEREBY AND THE UNDERLYING RESTRICTED SHARES ("RESTRICTED SHARES")
OF THE COMPANY ARE SUBJECT TO THE TERMS OF THE LETTER AGREEMENT,
DATED AS OF APRIL 24, 2007 (THE "LETTER AGREEMENT") AND THE DEPOSIT
AGREEMENT, DATED AS OF JUNE 11, 1996, (THE "DEPOSIT AGREEMENT"). ALL
TERMS USED BUT NOT OTHERWISE DEFINED HEREIN SHALL, UNLESS OTHERWISE
SPECIFICALLY DESIGNATED HEREIN, HAVE THE MEANING GIVEN TO SUCH TERMS
IN THE DEPOSIT AGREEMENT.
HOLDERS AND BENEFICIAL OWNERS OF THE RESTRICTED ADSs EVIDENCED BY
THIS RESTRICTED ADR BY ACCEPTING AND HOLDING THE RESTRICTED ADSs
SHALL BE BOUND BY THE TERMS OF THE DEPOSIT AGREEMENT AND THE LETTER
AGREEMENT. THESE SECURITIES HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
Exh. A-2
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A)(1) IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B)
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES.
PRIOR TO THE WITHDRAWAL OF THE RESTRICTED SHARES, A HOLDER OF
RESTRICTED ADSs WILL BE REQUIRED TO PROVIDE TO THE DEPOSITARY AND TO
THE COMPANY A WITHDRAWAL CERTIFICATION IN THE FORM ATTACHED TO THE
LETTER AGREEMENT. THE TRANSFER AND OTHER RESTRICTIONS SET FORTH
HEREIN AND IN THE LETTER AGREEMENT SHALL REMAIN APPLICABLE WITH
RESPECT TO THESE SECURITIES UNTIL SUCH TIME AS THE PROCEDURES SET
FORTH IN THE LETTER AGREEMENT FOR REMOVAL OF RESTRICTIONS ARE
SATISFIED. THE COMPANY AND THE DEPOSITARY SHALL BE ENTITLED TO
RECEIVE FROM THE HOLDER OF THE RESTRICTED ADSs SEEKING TO SELL,
PLEDGE OR OTHERWISE TRANSFER OR DELIVER THE RESTRICTED ADSs AN
OPINION OF QUALIFIED COUNSEL SATISFACTORY TO THE DEPOSITARY AND THE
COMPANY THAT THE TRANSFER RESTRICTIONS APPLICABLE TO THE RESTRICTED
ADSs HAVE BEEN OR ARE BEING SATISFIED.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THE
UNDERLYING SHARES MAY NOT BE DEPOSITED INTO ANY DEPOSITARY RECEIPT
FACILITY ESTABLISHED OR MAINTAINED BY A DEPOSITARY BANK OTHER THAN A
RESTRICTED DEPOSITARY RECEIPT FACILITY, UNLESS AND UNTIL SUCH TIME
AS SUCH SHARES ARE NO LONGER RESTRICTED SECURITIES (AS DEFINED IN
THE LETTER AGREEMENT). NEITHER THE COMPANY NOR THE DEPOSITARY MAKES
ANY REPRESENTATION AS TO THE AVAILABILITY OF THE EXEMPTION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT FOR RESALE OF THE RESTRICTED
SHARES OR THE RESTRICTED AMERICAN DEPOSITARY SHARES. A COPY OF THE
DEPOSIT AGREEMENT AND OF THE LETTER AGREEMENT MAY BE OBTAINED FROM
THE DEPOSITARY OR THE COMPANY UPON REQUEST."
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
______ Restricted American Depositary Shares, representing ______ deposited
common shares, each of Par Value of Ten Bolivars (Bs. 10.00), including evidence
of rights to receive such common shares (the "Shares") of Manufacturas de Papel,
C.A. (MANPA), S.A.C.A., a corporation incorporated under the laws of the
Republic of Venezuela (the "Company"). As of the date of the Letter Agreement
(hereinafter referred to), each American Depositary Share represents twenty-five
Exh. A-3
(25) Shares deposited under the Deposit Agreement with the Custodian which at
the date of execution of the Deposit Agreement is Citibank, N.A. (the
"Custodian"). The ratio of Depositary Shares to shares of stock is subject to
subsequent amendment as provided in Article IV of the Deposit Agreement
hereinafter referred to. The Depositary's principal executive office is located
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10013, U.S.A.
13. The Deposit Agreement. This Restricted American Depositary
receipt is one of an issue of Restricted American Depositary Receipts
("Receipts"), executed and delivered pursuant to the Deposit Agreement, dated as
of June 11, 1996 (the "Original Deposit Agreement"), by and among the Company,
the Depositary, and all registered Holders and Beneficial Owners of Receipts
from time to time of American Depositary Receipts issued thereunder, as
supplemented by that certain Letter Agreement , dated as of April 24, 2007, by
and between the Depositary and the Company, the (the "Letter Agreement" and
together with the Original Deposit Agreement as the same may be further amended
or supplemented from time to time, the "Deposit Agreement"), 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.
14. Surrender of Receipts and Withdrawal of Deposited Securities.
Under the Letter Agreement, the Company has instructed the Depositary, and the
Depositary has agreed not to release any Restricted Shares or cancel any
Restricted ADSs for the purpose of withdrawing the underlying Restricted Shares
unless (x) the conditions applicable to the withdrawal of Shares from the
depositary receipts facility created pursuant to the terms of the Deposit
Agreement (as described in the next paragraph of this Article (2)) have been
satisfied (except for any conditions relating to the Shares not being Restricted
Securities) including, without limitation, the Depositary's receipt of the
Receipts (duly endorsed and accompanied by the requisite signature guarantees,
if so required under the terms of the Deposit Agreement) evidencing such
Restricted ADSs and the applicable cancellation fees payable under the terms of
the Deposit Agreement and (y) the Depositary shall have received from the person
requesting the withdrawal of the Restricted Shares a duly completed and signed
Withdrawal Certification substantially in the form attached as Exhibit C to the
Letter Agreement. Subject to the satisfaction of the terms of the foregoing
paragraph, and the provisions of or governing the Deposited Securities and other
applicable laws, upon surrender of this Receipt at the Principal Office of the
Depositary 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
Exh. A-4
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
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.
15. 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
Exh. A-5
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.
16. Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, any Custodian or any Registrar may require payment
from the presenter of the Receipt of a sum sufficient to reimburse it for any
tax, duties or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax, duty, charge, fee and expense
with respect to Shares being deposited or Deposited Securities being withdrawn)
and payment of any applicable fees as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature or other matters, subject to Article (23) of this Receipt, and may
also require compliance with any laws or governmental regulations relating to
American depositary receipts or to the withdrawal of Deposited Securities.
After consultation with the Company, the delivery of Receipts
against deposits of Shares generally or against deposits of particular Shares
may be suspended, or the delivery of Receipts against the deposit of particular
Shares may be withheld, or the registration of transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Company (or the appointed agent for the
Company for the transfer and registration of Shares, which may but need not be
the Share Registrar) are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company in good faith at any time or from
time to time, because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit Agreement
or under the Company's By-laws or for any other reason, subject in all cases to
Article (23) hereof. Notwithstanding any other provision of the Deposit
Agreement, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended except as required in General Instructions IA(1)
to Form F-6 (as may be amended) under the Securities Act of 1933 in connection
with (i) temporary delays caused by closing the transfer books of the Depositary
or the Company (or the appointed agent for the Company for the transfer and
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.
17. 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
Exh. A-6
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.
18. 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.
19. Liability of Holder for Taxes, Duties and Other Charges. If any
tax, duty or other governmental charge shall become payable by the Depositary or
any Custodian with respect to any Receipt or any Deposited Securities
represented by the American Depositary Shares evidenced hereby, such tax, duty
or other governmental charge shall be payable by the Holder hereof to the
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.
20. Representations and Warranties of Depositors. Every person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that, to the best of such person's knowledge, such Shares
and each certificate therefor are validly issued, outstanding, fully paid,
non-assessable, not subject to calls for additional payments of any kind and
that any preemptive rights have been validly waived or exercised and that the
person making such deposit is duly authorized to do so. Each such person shall
be deemed to acknowledge complete responsibility for the report of any false
information relating to foreign exchange transactions to the Depositary, the
Custodian or any governmental authority in Venezuela in connection with the
issuance of Receipts and the deposit, transfer, surrender or withdrawal of
shares or Receipts. Every such person shall be deemed to represent and
acknowledge that the Shares presented for deposit and the American Depositary
Shares representing such Shares are Restricted Securities under the Securities
Act of 1933 and are subject to the restrictions on transfer and withdrawal set
forth in the legend printed on the face of this Receipt and described in the
Letter Agreement. Such representations and warranties shall survive any such
deposit, transfer, surrender and withdrawal of Shares and Receipts.
Exh. A-7
21. 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.
22. 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.
Exh. A-8
23. 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.
24. 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 or
facsimile signature of a duly authorized signatory of the Depositary and
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar.
Dated:
CITIBANK, N.A., CITIBANK, N.A.,
Transfer Agent and Registrar as Depositary
By: ________________________________ By: ________________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 388 Greenwich
Street, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Exh. A-9
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
25. Reports; Inspection of Transfer Books. The Company currently
furnishes the Securities and Exchange Commission with certain public reports and
documents required by the laws of Venezuela, Bolsa de Valores de Caracas and
Bolsa de Valores de Maracaibo in accordance with Rule 12g3-2(b) of the
Securities Exchange Act of 1934. Should the Company become subject to additional
informational requirements, it will in accordance therewith file reports and
other information with the Commission. Such reports and information are
available for inspection and copying by Holders at the public reference
facilities maintained by the Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
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.
26. 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
Exh. A-10
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 of the Deposit Agreement,
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 in 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
Exh. A-11
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
Exh. A-12
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.
Exh. A-13
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.
27. 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.
28. 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.
Exh. A-14
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.
29. 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 Exhibit A to the Letter Agreement or the Original Deposit
Agreement, as applicable, 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.
30. 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,
Exh. A-15
the reasonable fees and expenses of counsel) incurred by the Depositary or the
Custodian that may arise (a) out of or in connection with any actions performed
or omitted to be performed in connection with the Deposit Agreement and the
Receipts as the same may be amended, modified or supplemented from time to time,
in any such case (i) by the Depositary, the Custodian or any of their respective
directors, employees, agents and Affiliates, except to the extent such loss,
liability, tax, charge or expense is due to negligence or bad faith of any of
them, or (ii) by the Company or any of its directors, employees, agents and
Affiliates, or (b) out of delivery by the Depositary on behalf of the Company of
information regarding the Company in connection with 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.
31. 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, if 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
Exh. A-16
the Company or its agents shall be prevented, delayed or forbidden from doing or
performing any act or thing which by the terms of the Deposit Agreement it is
provided shall or may be done or performed or by reason of any exercise of, or
failure to exercise, any discretion provided for in the Deposit Agreement. Each
of the Depository, its controlling persons and its agents, the Company, its
controlling persons and its agents, assumes no obligation and shall be subject
to no liability under the Deposit Agreement or this Receipt to Holders or other
persons, except to perform such obligations as are specifically set forth and
undertaken by it to perform in the Deposit Agreement in good faith and using its
reasonable judgment. The Depositary and the Company undertake to perform such
duties and only such duties as are specifically set forth in the Deposit
Agreement, and no implied covenants or obligations will be read into the Deposit
Agreement against the Depositary or the Company or their respective agents. None
of the Depositary, its controlling persons or its agents will be (a) under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this Receipt that in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it in its sole discretion against all expense and liability be furnished as
often as may be required or (b) liable for any action or inaction by it or them
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder or any other person
believed by it or them in good faith to be competent to give such advice or
information. The Depositary, its controlling persons and its agents, and the
Company its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, direction or other document believed
by them in good faith to be genuine and to have been signed or presented by the
proper party or parties. Subject to the provisions of this paragraph (19), the
Depositary and its agents, directors, officers and employees will not be liable
for any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any such vote is cast or for the effect
of any such vote. The Depositary may own and deal in any class of securities of
the Company and its affiliates and in Receipts.
32. 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.
Exh. A-17
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.
33. 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.
34. 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
Exh. A-18
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 5.06 and 5.09 of
the Deposit Agreement.
35. 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.
36. Certain Rights of the Depositary; Limitations. The ADSs
represented hereby are not eligible for Pre-Release Transactions described in
Section 5.10 of the Deposit Agreement.
Exh. A-19
(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
__________________________
Exh. A-20
EXHIBIT B
to
Letter Agreement, dated as of April 24, 2007
(the "Letter Agreement"), by and between
Manufacturas de Papel, C.A. (MANPA), S.A.C.A.
and
Citibank, N.A.
_____________________
INITIAL SHARE OWNERS
_____________________
Name Number of Shares Nominee (if applicable)
---- ---------------- -----------------------
Inversionista 85735 LTD 101,457,800
Angel ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 12,258,575
Madina Investments LTD 11,126,800
Exh. B-1
EXHIBIT C
to
Letter Agreement, dated as of April 24, 2007
(the "Letter Agreement"), by and between
Manufacturas de Papel, C.A. (MANPA), S.A.C.A.
and
Citibank, N.A.
_____________________
WITHDRAWAL CERTIFICATION
_____________________
_______________, ____
Citibank, N.A.,
as Depositary
ADR Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Broker Services
Manufacturas de Papel, C.A. (MANPA), S.A.C.A. (Cusip # ▇▇▇▇▇▇▇▇▇)
Dear Sirs:
Reference is hereby made to (i) the Deposit Agreement, dated as of
June 11, 1996 (the "Deposit Agreement"), by and among Manufacturas de Papel,
C.A. (MANPA), S.A.C.A. (the "Company"), Citibank, N.A., as Depositary (the
"Depositary"), and the Holders and Beneficial Owners of American Depositary
Receipts issued thereunder, and (ii) the Letter Agreement, dated as of April 24,
2007 (the "Letter Agreement"), by and between the Company and the Depositary.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Deposit Agreement, or, in the event so noted herein, in the Letter
Agreement.
This Withdrawal Certification is being furnished in connection with
the withdrawal of Designated Shares (as defined in the Letter Agreement) upon
surrender of Designated Restricted ADSs (as defined in the Letter Agreement) to
the Depositary.
(A) We acknowledge, or, if we are acting for the account of another
person, such person has confirmed to us that it acknowledges, that
the Designated Restricted ADSs and the Designated Shares represented
thereby have not been registered under the Securities Act.
(B) We certify that we, and, if we are not the beneficial owner, the
beneficial owner has indicated that it, will sell the Designated
Shares in compliance with the requirements of the U.S. securities
Exh. C-1
laws (including, without limitation, the applicable laws of the
states of the United States), and we, and, if we are not the
beneficial owner, the beneficial owner has indicated that it, will
not deposit, or cause to be deposited, such Designated Shares into
any depositary receipts facility established or maintained by a
depositary bank other than a restricted facility established and
maintained for such purpose.
Very truly yours,
[Name of Certifying Entity]
By: ______________________________
Name:
Title:
Date:
Exh. C-2