June 17, 1993 YPF SOCIEDAD ANONIMA AND THE BANK OF NEW YORK As Depositary AND OWNERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of June 17, 1993
Exhibit
4.1
June
17,
1993
AND
THE
BANK
OF NEW YORK
As
Depositary
AND
OWNERS
OF
AMERICAN DEPOSITARY RECEIPTS
Dated
as
of June 17, 1993
TABLE
OF CONTENTS
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Page
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Parties
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1
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Recitals
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1
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ARTICLE
1
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Definitions
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Section
1.01. American Depositary Shares
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1
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Section
1.02. Commission
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1
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Section
1.03. Company
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2
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Section
1.04. Custodian
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2
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Section
1.05. Deposit Agreement
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2
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Section
1.06. Depositary; Corporate Trust
Office
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2
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Section
1.07. Deposited Securities
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2
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Section
1.08. Dollars; Pesos
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2
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Section
1.09. Foreign ▇▇▇▇▇▇▇▇▇
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▇
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Section
1.10. Owner
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2
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Section
1.11. Receipts
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2
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Section
1.12. ▇▇▇▇▇▇▇▇▇
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▇
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Section
1.13. Restricted Securities
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3
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Section
1.14. Securities Act of 1933
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3
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Section
1.15. Shares
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3
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ARTICLE
2
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Form
of Receipts, Deposit of Shares, Execution and Delivery, Transfer
and
Surrender of Receipts
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Section
2.01. Form and Transferability of
Receipts
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3
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Section
2.02. Deposit of Shares
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4
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Section
2.03. Execution and Delivery of
Receipts
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5
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Section
2.04. Transfer of Receipts; Combination and Split-up of
Receipts
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6
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Section
2.05. Surrender of Receipts and Withdrawal of
Shares
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6
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Section
2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts
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8
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Section
2.07. Lost Receipts, etc
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8
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Section
2.08. Cancellation and Destruction of Surrendered
Receipts
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9
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Section
2.09. Pre-Release of Receipts
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9
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Section
2.10. Maintenance of Records
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9
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ARTICLE
3
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Certain
Obligations of Owners of Receipts
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Section
3.01. Filing Proofs, Certificates and Other
Information
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10
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Section
3.02. Liability of Owner for Taxes
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10
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Section
3.03. Warranties on Deposit of Shares
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10
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Section
3.04. Disclosure of Interests
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11
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ARTICLE
4
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The
Deposited Securities
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Section
4.01. Cash Distributions
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11
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Section
4.02. Distributions Other Than Cash, Shares or
Rights
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11
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Section
4.03. Distributions in Shares
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12
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Section
4.04. Rights
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13
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Section
4.05. Conversion of Foreign Currency
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14
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Section
4.06. Fixing of Record Date
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15
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Section
4.07. Voting of Deposited Securities
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16
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Section
4.08. Changes Affecting
Deposited Securities
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17
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Section
4.09. Reports
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17
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Section
4.10. Lists of Owners
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17
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Section
4.11. Withholding
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18
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ARTICLE
5
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The
Depositary, The Custodians and the Company
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Section
5.01. Maintenance of Office and Transfer Books by the
Depositary
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18
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Section
5.02. Prevention or Delay in Performance by the Depositary
or the Company
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19
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Section
5.03. Obligations of the Depositary, the Custodian and the
Company
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20
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Section
5.04. Resignation and Removal of the Depositary:
Appointment of Successor Depositary
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20
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Section
5.05. The Custodians
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21
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Section
5.06. Notices and Reports
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22
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Section
5.07. Distribution of Additional Shares, Rights,
etc
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22
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Section
5.08. Indemnification
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23
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Section
5.09. Charges of Depositary
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24
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Section
5.10. Retention of Depositary
Documents
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25
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Section
5.11. List of Restricted Securities
Owners
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25
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Section
5.12. Dividend Reinvestment Plan
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25
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ARTICLE
6
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Amendment
and Termination
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Section
6.01. Amendment
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26
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Section
6.02. Termination
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26
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ii
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ARTICLE
7
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Miscellaneous
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Section
7.01. Counterparts
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27
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Section
7.02. No Third Party Beneficiaries
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27
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Section
7.03. Severability
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27
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Section
7.04. Holders and Owners as Parties; Binding
Effect
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27
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Section
7.05. Notices
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28
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Section
7.06. Governing Law
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28
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Section
7.07. Compliance with U.S. Securities
Laws
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28
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Testimonium
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28
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Signatures
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29
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Exhibit
A
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Form
of Receipt
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iii
DEPOSIT
AGREEMENT dated as of June 17, 1993 among YPF SOCIEDAD ANONIMA, a company
incorporated under the laws of the Republic of Argentina (herein called the
“Company”), THE BANK OF NEW YORK, a New York banking
corporation (herein called the “Depositary”), and all Owners
from time to time of American Depositary Receipts issued hereunder.
WITNESSETH:
WHEREAS,
the Company desires to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of Shares (as hereinafter defined) of the Company
from time to time with the Depositary or with the Custodian (as hereinafter
defined) as agent of the Depositary for the purposes set forth in this Deposit
Agreement, for the creation of American Depositary Shares representing the
Shares so deposited and for the execution and delivery of American Depositary
Receipts evidencing the American Depositary Shares; and
WHEREAS,
the American Depositary Receipts are to be substantially in the form of Exhibit
A annexed hereto, with appropriate insertions, modifications and omissions,
as
hereinafter provided in this Deposit Agreement;
NOW,
THEREFORE, in consideration of the premises, it is agreed by and between
the
parties hereto as follows:
ARTICLE
1
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
Section
1.01. American Depositary Shares. The term
“American Depositary Shares” shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent
1
Share, until there shall occur a distribution upon Deposited Securities covered
by Section
4.03 or a change in Deposited Securities covered by Section
4.08 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of Shares
or
Deposited Securities specified in such Sections.
Section
1.02. Commission. The term
“Commission” shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency in the United
States.
1
Section
1.03. Company. The term
“Company” shall mean YPF Sociedad Anónima, incorporated under
the laws of the Republic of Argentina, and its successors.
Section
1.04. Custodian. The term
“Custodian” shall mean the Buenos Aires office of The Bank
of
New York, S.A. as agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereafter be appointed
by
the Depositary pursuant to the terms of Section
5.05, as substitute or additional custodian or custodians hereunder, as the
context shall require and shall also mean all of them collectively.
Section
1.05. Deposit Agreement. The term
“Deposit Agreement” shall mean this Agreement, as the same may
be amended from time to time in accordance with the provisions
hereof.
Section
1.06. Depositary; Corporate Trust Office. The
term “Depositary” shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder. The term
“Corporate Trust Office”, when used with respect to the
Depositary, shall mean the office of the Depositary which at the date of
this
Agreement is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Section
1.07. Deposited Securities. The term
“Deposited Securities” as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and
any
and all other securities, property and cash received by the Depositary or
the
Custodian in respect thereof and at such time held hereunder.
Section
1.08. Dollars; Pesos. The term
“Dollars” shall mean United States dollars. The term
“Pesos” shall mean Argentine Pesos.
Section
1.09. Foreign Registrar. The term
“Foreign Registrar” shall mean Caja de Valores S.A., a company
organized under the laws of the Republic of Argentina (“Caja de
Valores”), which presently carries out the duties of registrar for the
Shares, or any successor as registrar for the Shares and any other appointed
agent of the Company for the transfer and registration of Shares.
Section
1.10. Owner. The term “Owner”
shall mean the person in whose name a Receipt
is registered on the books of the
Depositary maintained for such purpose.
Section
1.11. Receipts. The term
“Receipts” shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares as the same may be amended
from
time to time in accordance with the provisions hereof.
2
Section
1.12. Registrar. The term
“Registrar” shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed to register Receipts and transfers of Receipts as
herein provided and shall include any co-registrar appointed by the Depositary
after consultation with the Company.
Section
1.13. Restricted Securities. The term
“Restricted Securities” shall mean Shares, or Receipts
representing such Shares, which are restricted securities (as defined in
Rule
144 under the Securities Act of 1933), or which are held by an officer, director
(or persons performing similar functions) or other affiliate of the Company
(as
defined in Rule 144 under the Securities Act of 1933), or which would require
registration under the Securities Act of 1933 in connection with the offer
and
sale thereof in the United States and are not so registered or which are
subject
to other restrictions on sale or deposit under the laws of the United States
or
the Republic of Argentina, or under a shareholder agreement or the by-laws
of
the Company.
Section
1.14. Securities Act of 1933. The term
“Securities Act of 1933” shall mean the United States
Securities Act of 1933, as from time to time amended.
Section
1.15. Shares. The term “Shares”
shall mean Class D Shares of the Company, par
value 10 Pesos each (or evidence
of rights to receive the same), heretofore validly issued and outstanding
and
fully paid, nonassessable and free of any pre-emptive rights of the holders
of
outstanding Shares or hereafter validly issued and outstanding and fully
paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares.
ARTICLE
2
FORM
OF
RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND
SURRENDER OF RECEIPTS
Section
2.01. Form andTransferability of
Receipts. Definitive Receipts shall be substantially in the form
set forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid
or
obligatory for any purpose, unless such Receipt shall have been executed
by the
Depositary by the manual signature of a duly authorized signatory of the
Depositary; provided, however, that such signature may be a
facsimile if a Registrar for the Receipts shall have been appointed and such
Receipts are countersigned by the manual signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt
so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile
3
signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that
such
signatory has ceased to hold such office prior to the execution and delivery
of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The
Receipts shall be endorsed with or have incorporated in the text thereof
such
legends or recitals or modifications not inconsistent with the provisions
of
this Deposit Agreement as may be required by the Depositary, with the prior
consent of the Company, or by the Company to comply with any applicable law
or
regulations thereunder or with the rules and regulations of any securities
exchange or market upon which American Depositary Shares may be listed or
traded
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject
by
reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title
to a
Receipt (and to the American Depositary Shares evidenced thereby), when properly
endorsed or accompanied by proper instruments of transfer, shall be transferable
by delivery with the same effect as in the case of a negotiable instrument
governed by New York law; provided, however, that the Company
and the Depositary, notwithstanding any notice to the contrary, may treat
the
Owner thereof as the absolute owner thereof for the purpose of determining
the
person entitled to distribution of dividends or other distributions or to
any
notice provided for in this Deposit Agreement and for all other purposes
and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under this Deposit Agreement to any holder of a Receipt
unless
such holder is the Owner thereof.
Section
2.02. Deposit of Shares. Subject to the terms and
conditions of this Deposit Agreement, Shares or evidence of rights to receive
Shares may be deposited (i) by delivery of certificates evidencing such Shares
to the Custodian, accompanied by an appropriate instrument or instruments
of
transfer, or endorsement, in form satisfactory to the Custodian, (ii) through
electronic transfer of such Shares to the account maintained by the Custodian
at
the Foreign Registrar for such purpose, or (iii) delivery to the Custodian
of
evidence satisfactory to the Custodian that irrevocable instructions have
been
given to cause such Shares to be transferred to such account, in all such
cases,
accompanied by delivery to the Custodian of a written order from or on behalf
of
the Company or other person making the deposit directing the Depositary to
execute and deliver to the person or persons stated in such order a Receipt
or
Receipts, or to make adjustments to its records, in order to reflect the
number
of American Depositary Shares representing the Shares so deposited.
4
No
Share
shall be accepted for deposit until such Share is entitled to the same rights,
including with respect to dividends or other distributions, as Shares
constituting Deposited Securities.
No
Share
shall be accepted for deposit unless accompanied by evidence satisfactory
to the
Depositary that all conditions to such deposit have been satisfied by the
person
depositing such Shares under Argentine laws and regulations and any necessary
approval has been granted by any governmental body in the Republic of Argentina
which is then performing the function of the regulation of currency exchange.
If
required by the Depositary, Shares presented for deposit at any time, whether
or
not the transfer books of the Company or the Foreign Registrar, if applicable,
are closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At
the
request and risk and expense of any person proposing to deposit Shares, and
for
the account of such person, the Depositary may receive certificates for Shares
to be deposited, together with the other instruments herein specified, for
the
purpose of forwarding such Share certificates to the Custodian for deposit
hereunder.
Upon
each
delivery to a Custodian of a certificate or certificates for Shares to be
deposited hereunder, together with the other documents above specified, such
Custodian shall, as soon as transfer and recordation can be accomplished,
present such certificate or certificates to the Company or the Foreign
Registrar, if applicable, for transfer and recordation of the Shares being
deposited in the name of the Depositary or its nominee or such Custodian
or its
nominee.
The
deposited Shares and all other Deposited Securities shall be registered in
the
name of the Custodian or its nominee, unless otherwise agreed by the Company
and
the Depositary.
Section
2.03. Execution and Delivery of Receipts. Upon
receipt by the Custodian of any deposit pursuant to Section
2.02 hereunder (and, in addition, if the transfer books of the Company or
the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company
satisfactory to the Depositary that any Deposited Securities have been recorded
upon the books of the Company or the Foreign Registrar, if applicable, in
the
name of the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as
5
above
specified, such Custodian shall notify the Depositary of such deposit and
the
person or persons to whom or upon whose written order a Receipt or Receipts
are
deliverable in respect thereof and the number of American Depositary Shares
to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex
or
facsimile transmission. Upon receiving such notice from such Custodian, or
upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person
or
persons, but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such Receipt or Receipts as provided in
Section
5.09, and of all taxes and governmental charges and fees payable in connection
with such deposit and the transfer of the Deposited Securities.
Section
2.04. Transfer of Receipts; Combination and Split-up of
Receipts. The Depositary, subject to the terms and conditions of
this Deposit Agreement, shall register transfers of Receipts on its transfer
books from time to time, upon any surrender of a Receipt, by the Owner in
person
or by a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the laws
of the
State of New York and of the United States of America. Thereupon the Depositary
shall execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts, execute and deliver a new Receipt
or
Receipts for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
The
Depositary may appoint one or more co-transfer agents for the purpose of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. Each co-transfer agent appointed
under this Section
2.04 shall give notice in writing to the Company and the Depositary accepting
such appointment and agreeing to be bound by the applicable terms of this
Deposit Agreement. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to Receipts and will be entitled
to
protection and indemnity to the same extent as the Depositary.
Section
2.05. Surrender of Receipts and Withdrawal of
Shares. Upon surrender at the Corporate Trust Office of the
Depositary of a Receipt for the
6
purpose
of
withdrawal of the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, and upon payment of the fee of the Depositary
for the surrender of Receipts as provided in Section
5.09 and payment of all taxes and governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject
to
the terms and conditions of this Deposit Agreement, the Owner of such Receipt
shall be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
evidenced by such Receipt. Delivery of such Deposited Securities may be made
by
the physical or electronic delivery of Article 2 certificates in the name
of
such Owner or as ordered by him or certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and
Article
3 any other securities, property and cash to which such Owner is then entitled
in respect of such Receipts to such Owner or as ordered by him. Such delivery
shall be made, as hereinafter provided, without unreasonable delay.
A
Receipt
surrendered under this Section
2.05 for such purposes may be required by the Depositary to be properly endorsed
in blank or accompanied by proper instruments of transfer in blank, and if
the
Depositary so requires, the Owner 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 Buenos Aires office of such Custodian,
subject to Sections 2.06,
3.01
and 3.02
and to the other terms and conditions of this Deposit Agreement, to or upon
the
written order of the person or persons designated in the order delivered
to the
Depositary as above provided, the amount of Deposited Securities represented
by
the American Depositary Shares evidenced by such Receipt or evidence of the
electronic transfer to or for the account of such person of the Deposited
Securities to an account at the Foreign Registrar, except that the Depositary
may make delivery to such person or persons at the Corporate Trust Office
of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced 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.
At
the
request, risk and expense of any Owner so surrendering a Receipt, and for
the
account of such Owner, the Depositary shall direct the Custodian to forward
any
cash or other property (other than rights) comprising, and forward a certificate
or certificates and other proper documents of title for, the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk
and
expense of such Owner, by cable, telex or facsimile transmission.
7
Section
2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts. 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, Custodian
or Registrar may require payment from the depositor of Shares or the presenter
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares
being
deposited or withdrawn) and payment of any applicable fees as herein provided,
may require the production of proof satisfactory to it as to the identity
and
genuineness of any signature and may also require compliance with any
regulations the Depositary may establish consistent with the provisions of
this
Deposit Agreement, including, without limitation, this Section
2.06.
The
delivery of Receipts against deposits of Shares generally or against deposits
of
particular Shares may be suspended, or the 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 are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body
or
commission, or under any provision of this Deposit Agreement, or for any
other
reason, subject to the provisions of the following sentence. The surrender
of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books
of the
Depositary or the Company or the deposit of Shares in connection with voting
at
a shareholders’ meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign
laws or
governmental regulations relating to the Receipts or to the withdrawal of
the
Deposited Securities.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares which (a) if sold by the
holder
thereof in the United States (as defined in Regulation S under the Securities
Act of 1933) would be, to the actual knowledge of the Depositary, subject
to the
registration provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares or (b) the deposit of which would,
to
the actual knowledge of the Depositary, thereby infringe any provision of
the
by-laws of the Company.
Section
2.07. Lost Receipts, etc. In case any Receipt
shall be mutilated, destroyed, lost or stolen, the Depositary shall execute
and
deliver a new Receipt of like tenor in exchange and substitution for such
mutilated Receipt upon cancellation thereof, or in lieu of and in substitution
for such destroyed, lost or stolen Receipt. Before the Depositary shall execute
and deliver a new Receipt in
8
substitution
for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed
with the Depositary (i) a request for such execution and delivery before
the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
Section
2.08. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy Receipts
so
cancelled.
Section
2.09. Pre-Release of Receipts. Notwithstanding
Section
2.03 hereof, the Depositary may execute and deliver Receipts prior to the
receipt of Shares pursuant to Section
2.02 (“Pre-Release”). The Depositary may, pursuant to Section
2.05, deliver Shares upon the receipt and cancellation of Receipts which
have
been Pre- Released, whether or not such cancellation is prior to the termination
of such Pre-Release or the Depositary knows that such Receipt has been
Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts
are to
be delivered that such person, or its customer, owns the Shares or Receipts
to
be remitted, as the case may be, (b) at all times fully collateralized with
cash
or United States government securities until such Shares are deposited,
(c) terminable by the Depositary on not more than five (5) business days
notice, and (d) subject to such further indemnities and credit regulations
as
the Depositary deems appropriate. The number of American Depositary Shares
which
are outstanding at any time as a result of Pre-Release will not normally
exceed
thirty percent (30%) of the Shares deposited hereunder then outstanding;
provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems
appropriate.
The
Depositary may retain for its own account any compensation received by it
in
connection with the foregoing, including interest on any collateral. The
Company
shall have no liability to the Depositary or any Owner with respect to any
representations, actions or omissions by the Depositary or any Owner pursuant
to
this Section
2.09.
Section
2.10. Maintenance of Records. The Depositary
agrees to maintain records of all Receipts surrendered and Deposited Securities
withdrawn under Section
2.05, substitute Receipts delivered under Section
2.07, and cancelled or destroyed Receipts under Section
2.08, in keeping with procedures ordinarily followed by stock transfer agents
located in The City of New York. The Depositary agrees to make such records
available to the Company upon its reasonable request.
9
ARTICLE
3
CERTAIN
OBLIGATIONS OF OWNERS OF RECEIPTS
Section
3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Shares for deposit or any
Owner of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, compliance with all applicable laws and regulations or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make
such
representations and warranties, as the Depositary or the Company may deem
necessary or proper. The Depositary may, and at the reasonable request of
the
Company shall, withhold the delivery or registration of transfer of any Receipt
or the distribution of any dividend or sale or distribution of rights or
of the
proceeds thereof or the delivery of any Deposited Securities until such proof
or
other information is filed or such certificates are executed or such
representations and warranties made. Upon the request of the Company, the
Depositary shall provide the Company with copies of all such certificates
and
such written representations and warranties provided to the Depositary under
this Section
3.01. Each Owner agrees to provide any information requested by the Company
or
the Depositary pursuant to this paragraph.
Section
3.02. Liability of Owner for Taxes. If any tax or
other governmental charge shall become payable with respect to any Receipt
or
any Deposited Securities represented by any such Receipt, such tax or other
governmental charge shall be payable by the Owner of such . Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt
or
any withdrawal of Deposited Securities represented by American Depositary
Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions in respect of any Deposited Securities,
or may
sell for the account of the Owner thereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, and may apply such dividends or other distributions or the proceeds
of
any such sale in payment of such tax or other governmental charge and the
Owner
of such Receipt shall remain liable for any deficiency.
Section
3.03. Warranties on Deposit of Shares. Every
person depositing Shares under this Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are
validly
issued, fully paid, nonassessable and free of any preemptive rights of the
holders of outstanding Shares and that the person making such deposit is
duly
authorized so to do. Every such person shall also be deemed to represent
that
such Shares are not Restricted Securities. Such representations and warranties
shall survive the deposit of such Shares and issuance of Receipts.
10
Section
3.04. Disclosure of Interests. The Company may
from time to time request Owners to provide information as to the capacity
in
which such Owners own or owned Receipts and regarding the identity of any
other
persons then or previously interested in such Receipts and the nature of
such
interest. Each Owner agrees to provide any information requested by the Company
or the Depositary pursuant to this Section
3.04. The Depositary agrees to comply with reasonable written instructions
reasonably given by the Company requesting that the Depositary forward any
such
requests to the Owners and to forward to the Company any such responses to
such
requests received by the Depositary.
ARTICLE
4
THE
DEPOSITED SECURITIES
Section
4.01. Cash Distributions. Whenever the Depositary
shall receive any cash dividend or other cash distribution on any Deposited
Securities, the Depositary shall, if such cash is received in Foreign Currency,
subject to the provisions of Section
4.05 and to the following sentence, convert such dividend or distribution
into
Dollars and shall as promptly as practicable distribute the amount thus received
(net of the reasonable and customary expenses incurred by the Depositary
as
provided in Section
5.09) to the Owners entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the
Company or the Depositary shall be required to withhold and does withhold
from
such cash dividend or such other cash distribution an amount on account of
taxes
or other governmental charges, the amount distributed to the Owner of the
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. The Depositary shall distribute
only
such amount, however, as can be distributed without attributing to any Owner
a
fraction of one cent. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Owners entitled thereto. The Company
or
its agent will remit to the appropriate governmental agency in Argentina
all
amounts withheld and owing to such agency. The Depositary will forward to
the
Company or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental agencies, and the Depositary or the Company or its agent
may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Owners of Receipts.
Section
4.02. Distributions Other Than Cash, Shares or
Rights. Subject to the provisions of Sections 4.11
and 5.09,
whenever the Depositary shall receive any distribution other than a distribution
described in Section 4.01,
4.03
or 4.04,
the Depositary shall cause the securities or property received by it to be
distributed to the Owners entitled thereto, in proportion to the number of
11
American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided,
however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Owners entitled thereto, or if for
any
other reason (including, but not limited to, any requirement that the Company
or
the Depositary withhold an amount on account of taxes or other governmental
charges or that such securities must be registered under the Securities Act
of
1933 in order to be distributed to Owners) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as
it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities
or
property thus received, or any part thereof, and the net proceeds of any
such
sale shall be distributed by the Depositary to the Owners entitled thereto
as in
the case of a distribution received in cash.
Section
4.03. Distributions in Shares. Except as provided
below, if any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the
Company shall so request, reflect on the records of the Depositary such increase
in the aggregate number of American Depositary Shares representing such Shares,
or distribute to the Owners of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount
of
Shares received as such dividend or free distribution, subject to the terms
and
conditions of the Deposit Agreement with respect to the deposit of Shares
and
the issuance of American Depositary Shares evidenced by Receipts, including
the
withholding of any tax or other governmental charge as provided in Section
4.11 and the payment of the fees of the Depositary as provided in Section
5.09. In lieu of delivering Receipts for fractional American Depositary Shares
in any such case, the Depositary shall sell the amount 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
4.01. If additional Receipts are not so distributed, each American Depositary
Share shall thenceforth also represent the additional Shares distributed
upon
the Deposited Securities represented thereby.
If
any
dividend in, or free distribution of, Shares described above consists of
Shares
that are not entitled to the same rights, including rights with respect to
dividends or other distributions, as Shares constituting Deposited Securities,
such dividend or free distribution shall be treated by the Depositary as
a
distribution in other than cash, Shares or rights in accordance with Section
4.02.
The
Depositary may withhold any distribution of Receipts under this Section
4.03 subject to its satisfaction that such distribution does not require
12
registration
under the Securities Act of 1933 or is exempt from registration under the
provisions of such Act.
Section
4.04. Rights. In the event that the Company shall
offer or cause to be offered to the holders of any Deposited Securities any
rights to subscribe for additional Shares or any rights of any other nature,
the
Depositary, after consultation with the Company, shall have discretion as
to the
procedure to be followed in making such rights available to any Owners or
in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or for
any
other reason, the Depositary may not either make such rights available to
any
Owners or dispose of such rights and make the net proceeds available to such
Owners, then the Depositary shall allow the rights to lapse. If at the time
of
the offering of any rights the Depositary determines in its discretion, after
consultation with the Company, that it is lawful and feasible to make such
rights available to all or certain Owners but not to other Owners, the
Depositary may, after consultation with the Company, distribute to any Owner
to
whom it determines the distribution to be lawful and feasible, in proportion
to
the number of American Depositary Shares held by such Owner, warrants or
other
instruments therefor in such form as it deems appropriate.
If
the
Depositary has distributed warrants or other instruments for rights to all
or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary to exercise such rights,
upon
payment by such Owner to the Depositary for the account of such Owner of
an
amount equal to the purchase price of the Shares to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary and
any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares,
and
the Company shall cause the Shares so purchased to be delivered to the
Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will
cause the Shares so purchased to be deposited pursuant to Section
2.02 of this Deposit Agreement, and shall, pursuant to Section
2.03 of this Deposit Agreement, execute and deliver Receipts representing
American Depositary Shares evidencing such Shares to such Owner. In the case
of
a distribution pursuant to the second paragraph of this section, such Receipts
shall be legended in
13
accordance
with applicable U.S. laws, and shall be subject to the appropriate restrictions
on sale, deposit, cancellation, and transfer under such laws.
If
the
Depositary determines in its discretion, after consultation with the Company,
that it is not lawful and feasible to make such rights available to all or
certain Owners, it may sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by the Owners
to
whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of the fees of
the
Depositary as provided in Section
5.09 and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of this Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants
or
other instruments, upon an averaged or other practicable basis without regard
to
any distinctions among such Owners because of exchange restrictions or the
date
of delivery of any Receipt or otherwise.
If
registration under the Securities Act of 1933 of the rights or of the securities
to which any rights relate is required in order for the Company to offer
such
rights to Owners and sell the securities upon the exercise of such rights
to
Owners, the Depositary will not offer such rights to the Owners having an
address in the United States unless and until such a registration statement
is
in effect, or unless the offering and sale of such securities to the Owners
of
such Receipts are exempt from registration under the provisions of such Act.
Notwithstanding any terms of this Deposit Agreement to the contrary, the
Company
shall have no obligation to prepare and file a registration statement for
any
purpose.
The
Depositary shall not be responsible for any failure to determine that it
may be
lawful or feasible to make such rights available to Owners in general or
any
Owner in particular.
Section
4.05. Conversion of Foreign Currency. Subject to
any restrictions imposed by Argentine laws, regulations or applicable permits
issued by any Argentine governmental body, whenever the Depositary shall
receive
foreign currency, by way of dividends or other distributions or the net proceeds
from the sale of securities, property or rights, and if at the time of the
receipt thereof the foreign currency so received can in the judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall as promptly
as
practicable convert or cause to be converted, by sale or in any other manner
that it may determine, such foreign currency into Dollars, and such Dollars
shall be distributed to the Owners entitled thereto (except as provided in
Section
4.01), or, if the Depositary shall have distributed any warrants or other
instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among
14
Owners
on
account of exchange restrictions, the date of delivery of any Receipt or
otherwise and shall be net of any reasonable and customary expenses of
conversion into Dollars incurred by the Depositary as provided in Section
5.09.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, then such conversion or distribution shall
be
done only with such approval or license.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary is not convertible on a reasonable basis into
Dollars
transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied
or
in the opinion of the Depositary is not obtainable, or if any such approval
or
license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or in its discretion may hold such foreign
currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance
of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
Section
4.06. Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable or any distribution
other than cash shall be made, or whenever rights shall be issued with respect
to the Deposited Securities, or whenever 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, the Depositary shall fix a record
date,
which date shall, to the extent practicable, be the same record date fixed
by
the Company (a) for the determination of the Owners who shall be (i) entitled
to
receive such dividend, distribution or rights or the net proceeds of the
sale
thereof or (ii) entitled to give instructions for the exercise of voting
rights
at any such meeting, or (b) on or after which each American Depositary Share
will represent the changed number of Shares. If a coinciding record date
is not
possible, the Depositary shall fix a record date as near as practicable to
the
record date set by the Company. Subject to the provisions of Sections 4.01
through 4.05
and to the other terms and conditions of this Deposit Agreement, the Owners
on
such record date shall be entitled, as the case may be, to receive the amount
distributable by
15
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 and to give voting instructions
and
to act in respect of any other such matter.
Section
4.07. Voting of Deposited Securities. Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall, as soon as practicable thereafter, mail
or
cause to be mailed to the Owners a notice, the form of which notice shall
be
subject to the reasonable discretion of the Depositary and any applicable
provision of Argentine law that governs the form of such notice, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (b) a statement that the Owners as of
the
close of business on a specified record date will be entitled, subject to
any
applicable provision of Argentine law and of the by-laws of the Company and
the
provisions of the Shares or other Deposited Securities, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to
the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which
such
instructions may be given. Upon the written request of an Owner on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor, in so far as practicable, to vote
or
cause to be voted the amount of Shares or other Deposited Securities represented
by the American Depositary Shares in accordance with the instructions set
forth
in such request. The Depositary shall not vote Shares or other Deposited
Securities represented by the American Depositary Shares except in accordance
with instructions received from an Owner; provided, however,
that if no such instructions are received, the Depositary shall vote the
Shares
or other Deposited Securities represented by the American Depositary Shares
in
accordance with the recommendations of the Board of Directors of the Company
made to all holders of Shares, unless prohibited from doing so by any applicable
provisions of Argentine law, and if no such recommendations are made it shall
not vote such Shares or other Deposited Securities. Notwithstanding the
foregoing, the Depositary shall not be required to vote such Shares in
accordance with the recommendations of the Board of Directors, if made, unless
the Company has provided to the Depositary a copy of an opinion of Argentine
counsel stating that the action recommended by the Board of Directors for
approval by holders of Shares is not in contravention of Argentine law or
regulations, if any, or the by-laws of the Company.
In
addition, at any meeting of holders of Shares or other Deposited Securities,
the
Depositary shall, if requested by the Board of Directors of the Company and
unless prohibited by any applicable provisions of Argentine law, deposit
all
Shares or other Deposited Securities represented by the American Depositary
Shares for purposes of establishing a quorum at such meetings, whether or
not
voting instructions with respect thereto have been received.
16
The
Depositary agrees to retain all records relating to the voting of Deposited
Securities pursuant to this Section as required under applicable Argentine
law.
In
connection with the performance of their respective obligations under this
section the Company and the Depositary hereby mutually agree to inform one
another of any applicable requirements of Argentine law and any changes thereto
as soon as such requirements or changes come to the Company’s or the
Depositary’s knowledge, as the case may be. The Depositary shall not be
responsible for determining the existence or applicability of any such
requirement.
Section
4.08. Changes Affecting
Deposited Securities. In circumstances where the
provisions of Section
4.03 do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation or
sale of
assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities, shall be treated as
new
Deposited Securities under this Deposit Agreement, and American Depositary
Shares shall thenceforth represent, in addition or in replacement, as
applicable, to the existing Deposited Securities, the new Deposited Securities
so received in exchange or conversion, unless additional Receipts are delivered
pursuant to the following sentence. In any such case the Depositary may,
after
consultation with the Company, and shall if the Company shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
Section
4.09. Reports. The Depositary shall make
available for inspection by Owners at its Corporate Trust Office any reports
and
communications, including any proxy soliciting material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to the
Owners copies of such reports when furnished by the Company pursuant to Section
5.06. Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English, to the extent such materials are required to be translated into
English
pursuant to any regulations of the Commission.
Section
4.10. Lists of Owners. Promptly upon request by
the Company, the Depositary shall, at the expense of the Company, furnish
to it
a list, as of a recent date, of the names, addresses and holdings of American
Depositary Shares
17
by
all
persons in whose names Receipts are registered on the books of the
Depositary.
Section
4.11. Withholding. 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
charge
which the Depositary is obligated to withhold, the Depositary may by public
or
private sale dispose of all or a portion of such property (including Shares
and
rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay any such taxes or charges
and
the Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes or charges to the Owners 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. The Company or its agent shall
remit to appropriate governmental authorities and agencies in Argentina all
amounts, if any, withheld and owing to such authorities and agencies by the
Company. The Depositary or its agent shall remit to appropriate governmental
authorities and agencies in the United States all amounts, if any, withheld
and
owing to such authorities and agencies by the Depositary.
The
Depositary shall forward to the Company or its agent such information from
its
records as the Company may reasonably request to enable the Company or its
agent
to file necessary reports with governmental agencies. The Depositary shall
use
reasonable efforts to make and maintain arrangements enabling Owners who
are
citizens or residents of the United States to receive any tax credits or
other
benefits (pursuant to treaty or otherwise) relating to dividend payments
on the
American Depositary Shares.
ARTICLE
5
THE
DEPOSITARY, THE CUSTODIANS AND THE COMPANY
Section
5.01. Maintenance of Office and Transfer Books by the
Depositary. Until termination of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain in the Borough of
Manhattan, The City of New York, facilities for the execution and delivery,
registration, registration of transfers and surrender of Receipts in accordance
with the provisions of this Deposit Agreement.
The
Depositary shall keep books for the registration of Receipts and transfers
of
Receipts which at all reasonable times shall be open for inspection by the
Owners, provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than
the
18
business
of the Company of a matter related to this Deposit Agreement or the
Receipts.
The
Depositary may close the transfer books, (a) at any time or from time to
time,
when deemed expedient by it in connection with the performance of its duties
hereunder or (b) at the reasonable request of the Company.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges or automated quotation systems in the United States,
after consultation with the Company, the Depositary shall act as Registrar
or
appoint a Registrar or one or more co-registrars for registry of such Receipts
in accordance with any requirements of such exchange or exchanges or system
or
systems. Such Registrar or co-registrars may be removed and a substitute
or
substitutes appointed by the Depositary with the consent of the Company,
which
consent shall not be unreasonably withheld.
The
Company shall have the right, at all reasonable times, to inspect transfer
and
registration records of the Depositary, the Registrar and any co-transfer
agents
or co-registrars and to require such parties to supply copies of such portions
of their records as the Company may request.
Section
5.02. Prevention or Delay in Performance by the Depositary or the
Company. Neither the Depositary nor the Company shall incur any
liability to any Owner or holder of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States, Argentina
or
any other country, or of any governmental or regulatory authority or stock
exchange, or by reason of any provision, present or future, of the by-laws
of
the Company, or by reason of any provisions of any securities issued or
distributed by the Company or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the
terms
of this Deposit Agreement it is provided shall be done or performed; nor
shall
the Depositary or the Company incur any liability to any Owner or holder
of any
Receipt by reason of any nonperformance or delay, caused as aforesaid, in
the
performance of any act or thing which by the terms of this Deposit Agreement
it
is provided shall or may be done or performed, or by reason of any exercise
of,
or failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.01,
4.02,
or 4.03
of the Deposit Agreement, or an offering or distribution pursuant to Section
4.04 of the Deposit Agreement, or for any other reason, such distribution
or
offering may not be made available to Owners, and the Depositary may not
dispose
or such distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to
lapse.
19
Section
5.03. Obligations of the Depositary, the Custodian and the
Company. The Company assumes no obligation nor shall it be
subject to any liability under this Deposit Agreement to Owners or holders
of
Receipts, except that it agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence or bad faith.
The
Depositary assumes no obligation nor shall it be subject to any liability
under
this Deposit Agreement to any Owner or holder of any Receipt (including,
without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that it agrees to perform its obligations specifically
set
forth in this Deposit Agreement without negligence or bad faith.
Neither
the Depositary nor the Company shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion
may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required,
and
the Custodian shall not be under any obligation whatsoever with respect to
such
proceedings, the responsibility of the Custodian being solely to the
Depositary.
Neither
the Depositary nor the Company shall be liable for any action or nonaction
by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Owner or any other person believed
by it in good faith to be competent to give such advice or
information.
The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal
or
resignation of the Depositary, provided that in connection with the issue
out of
which such potential liability arises the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
The
Depositary shall not be responsible 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 the effect of any such vote, provided that any such
action or nonaction is in good faith.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
Section
5.04. Resignation and Removal of the Depositary:
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by written notice of its election so
to do
delivered to the Company,
20
such
resignation to take effect upon the appointment of a successor depositary
and
its acceptance of such appointment as hereinafter provided.
The
Depositary may at any time be removed by the Company by written notice of
such
removal effective upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In
case at
any time the Depositary acting hereunder shall resign or be removed, the
Company
shall use its best efforts to appoint a successor depositary, which shall
be a
bank or trust company having an office in the Borough of Manhattan, The City
of
New York. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Company
shall
execute and deliver an instrument transferring to such successor all rights
and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor,
and
shall deliver to such successor a list of the Owners of all outstanding Receipts
together with copies of such records in relation to the Receipts as the Company
may reasonably request; provided, however, the Depositary
shall not be required to divulge proprietary information as to the operation
of
its business. Any such successor depositary shall promptly mail notice of
its
appointment to the Owners.
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.
Section
5.05. The Custodians. The Depositary, after
consultation with the Company, may from time to time appoint one or more
agents,
as permitted by Argentine law and any other applicable laws or regulations,
to
act for it as Custodian hereunder. The Custodian shall be subject at all
times
and in all respects to the directions of the Depositary and shall be responsible
solely to it. Any Custodian may resign and be discharged from its duties
hereunder by notice of such resignation delivered to the Depositary at least
30
days prior to the date on which such resignation is to become effective.
The
Depositary, with the consent of the Company, may discharge any Custodian.
If
upon such resignation or discharge there shall be no Custodian acting hereunder,
the Depositary shall, promptly after receiving such notice, upon consent
of the
Company, appoint a substitute custodian or custodians, each of which shall
thereafter be a Custodian hereunder. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint substitute or additional custodian or custodians, which shall thereafter
be one of the Custodians hereunder. Upon demand of the Depositary any Custodian
shall deliver such of
21
the
Deposited Securities held by it as are requested of it to any other Custodian
or
such substitute or additional custodian or custodians. Each such substitute
or
additional custodian shall deliver to the Depositary and the Company, forthwith
upon its appointment, an acceptance of such appointment satisfactory in form
and
substance to the Depositary and the Company. Immediately upon any such change
and if the Company shall so request, the Depositary shall give notice thereof
in
writing to all Owners.
Upon
the
appointment of any successor depositary hereunder, each Custodian then acting
hereunder shall forthwith become, without any further act or writing, the
agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder;
but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete
power
and authority as agent hereunder of such successor depositary.
Section
5.06. Notices and Reports. On or before the first
date on which the Company gives notice, by publication or otherwise, of any
meeting of holders of Shares or other Deposited Securities, or of any adjourned
meeting of such holders, or of the taking of any action in respect of any
cash
or other distributions or the offering of any rights, the Company agrees
to
transmit to the Depositary and the Custodian an English language copy of
the
notice thereof in the form given or to be given to holders of Shares or other
Deposited Securities.
The
Company will arrange for the translation into English, if not already in
English, to the extent required pursuant to any regulations of the Commission,
and the prompt transmittal by the Company to the Depositary and the Custodian
of
such notices and any other reports and communications which are made generally
available by the Company to holders of its Shares. If requested in writing
by
the Company, the Depositary will arrange for the mailing, at the Company’s
expense, of copies of such notices, reports and communications to all Owners.
The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from
time
to time, in order for the Depositary to effect such mailings.
Section
5.07. Distribution of Additional Shares, Rights,
etc. The Company agrees that in the event of any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for Shares,
(3)
securities convertible into Shares, or (4) rights to subscribe for such
securities (each a “Distribution”), the Company will promptly
notify the Depositary of such Distribution and direct the Depositary to take
specific measures with respect to the acceptance for deposit of Shares or
other
securities to prevent such Distribution from being made in violation of the
registration requirements of the Securities Act of 1933, provided,
however, the
22
Depositary
shall have the right not to accept for deposit Shares or other securities
if the
Depositary shall not have received from the Company a written opinion of
U.S.
counsel for the Company which counsel shall be satisfactory to the Depositary,
stating that such deposit would not result in a violation of the registration
requirement of the Securities Act of 1933.
In
the
event that registration under the Securities Act of 1933 would be required
in
connection with any such Distribution, the Company shall have no obligation
to
effect such registration. To the extent the Company in its discretion deems
it
necessary or advisable in order to avoid any requirement to register such
additional securities under the Securities Act of 1933, the Company may prevent
Owners in the United States from purchasing any such additional securities
(whether pursuant to preemptive rights or otherwise) and give the Depositary
written instructions directing the Depositary not to accept any Shares for
deposit for such period of time following the issuance of such additional
securities and to adopt such other specific measures as the Company may
reasonably request in writing. The Depositary agrees with the Company that
it
shall comply with such instructions.
The
Company agrees with the Depositary that neither the Company nor any affiliate
of
the Company will (a) at any time deposit any Shares, either originally issued
or
previously issued and reacquired by the Company or by any affiliate, unless
a
registration statement is in effect as to such Shares under the Securities
Act
of 1933 or such Shares are not required to be registered under the Securities
Act of 1933 or any applicable securities laws of any state of the United
States
or (b) resell any Receipts acquired by any of them. The Depositary will comply
with the written instructions of the Company not to accept knowingly for
deposit
hereunder any Shares identified in such instructions at such times and under
such circumstances as may be specified in such instructions in order to
facilitate the Company’s compliance with the securities laws of the United
States or any applicable securities laws of any state of the United
States.
Section
5.08. Indemnification. The Company agrees to
indemnify the Depositary and any Custodian against, and hold each of them
harmless from any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of acts performed
or omitted, in accordance with the provisions of this Deposit Agreement and
of
the Receipts, as the same may be amended, modified or supplemented from time
to
time, (A) by either the Depositary or a Custodian, except for any liability
or
expense arising out of the negligence (including the negligent failure by
the
Depositary or Custodian to comply with any provision of the Deposit Agreement
or
of the Receipts, as the same may be amended, modified or supplemented from
time
to time) or bad faith of either of them, or (B) by the Company or any of
its
agents; provided, however, that such indemnity shall not
extend to any expenses of the
23
Depositary
that, pursuant to the Deposit Agreement or any supplemental fee or other
agreement, are not payable by the Company.
The
Company shall not indemnify the Depositary or any Custodian against any
liability or expense arising out of (i) information relating to the Depositary
or the Custodian, as the case may be, furnished in writing to the Company
and
executed by the Depositary expressly for the use in any registration statement,
prospectus, preliminary prospectus, proxy statement, offering circular or
preliminary offering circular relating to the Shares evidenced by the American
Depositary Shares, or (ii) any Pre-Release (including, without limitation,
any
claim that any party to a Pre-Release may assert relating to such Pre-Release)
entered into by the Depositary or the Custodian.
The
Depositary agrees to indemnify the Company and hold it harmless from any
liability or expense (including, but not limited to, the reasonable fees
and
expenses of counsel) which may arise out of acts performed or omitted by
the
Depositary or its Custodian or their respective directors, employees, agents
and
affiliates due to their negligence or bad faith.
Any
person
seeking indemnification hereunder (an “indemnified person”)
shall notify the person from whom it is seeking indemnification (the
“indemnifying person”) of a commencement of any indemnifiable
action or claim promptly after such indemnified person becomes aware of such
commencement 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 under the circumstances. No indemnified person shall compromise
or
settle any action or claim without the consent of the indemnifying
person.
The
obligations set forth in this Section
5.08 shall survive the termination of this Deposit Agreement and the succession
or substitution of any indemnified person.
Section
5.09. Charges of Depositary. The Company agrees
to pay the fees, reasonable expenses and out-of-pocket charges of the Depositary
and those of any Registrar only in accordance with agreements in writing
entered
into between the Depositary and the Company from time to time. The Depositary
shall present its statement for such charges and expenses to the Company
once
every three months. The charges and expenses of the Custodian are for the
sole
account of the Depositary.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to Section
24
4.03),
whichever applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration
of
transfers of Shares generally on the Share register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of the Depositary
or
its nominee or the Custodian or its nominee on the making of deposits or
withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses
as are expressly provided in this Deposit Agreement, (4) such reasonable
and
customary expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section
4.05, (5) a fee not in excess of $5.00 or less per 100 American Depositary
Shares (or portion thereof) for the execution and delivery of Receipts pursuant
to Sections 2.03
or 4.03
and the surrender of Receipts pursuant to Section
2.05 and (6) a fee for, and the deduction of such fee from, the distribution
of
proceeds of sales of securities or rights pursuant to Section 4.02
or 4.04,
respectively, such fee being in an amount equal to the fee for the issuance
of
American Depositary Shares referred to above which would have been charged
as a
result of the deposit by Owners of securities (for purposes of this Clause
(6)
treating all such securities as if they were Shares) or Shares received in
exercise of rights distributed to them pursuant to Section 4.02
or 4.04,
respectively, but which securities or rights are instead sold by the Depositary
and the net proceeds distributed.
The
Depositary, subject to Section
2.09 hereof, may own and deal in any class of securities of the Company and
its
affiliates and in Receipts.
Section
5.10. Retention of Depositary Documents. The
Depositary is authorized to destroy those documents, records, bills and other
data compiled during the term of this Deposit Agreement at the times permitted
by the laws or regulations governing the Depositary unless the Company requests
that such papers be retained for a longer period or turned over to the Company
or to a successor depositary.
Section
5.11. List of Restricted Securities Owners. From
time to time, the Company shall provide to the Depositary a list setting
forth,
to the actual knowledge of the Company, those persons or entities who
beneficially own Restricted Securities and the Company shall update that
list on
a regular basis. The Company agrees to advise in writing each of the persons
or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but, except as
expressly provided for herein, shall not be liable for any action or omission
made in reliance thereon.
Section
5.12. Dividend Reinvestment Plan. The Depositary
agrees not to establish a Dividend Reinvestment Plan with respect to American
Depositary Shares without the prior written consent of the Company.
25
ARTICLE
6
AMENDMENT
AND TERMINATION
Section
6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time
be
amended by agreement between the Company and the Depositary in any respect
which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery
costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment shall
have been given to the Owners of outstanding Receipts. Every Owner at
the time any amendment so becomes effective shall be deemed, by continuing
to
hold such Receipt, to consent and agree to such amendment and to be bound
by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Owner of any Receipt to surrender such Receipt and receive therefor
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
Section
6.02. Termination. The Depositary shall at any
time at the direction of the Company, terminate this Deposit Agreement by
mailing notice of such termination to the Owners of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate this Deposit Agreement
by
mailing notice of such termination to the Company and the Owners of all Receipts
then outstanding if at any time 90 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section
5.04. On and after the date of termination, the Owner of a Receipt will,
upon
(a) surrender of such Receipt at the Corporate Trust Office of the Depositary,
(b) payment of the fee of the Depositary for the surrender of Receipts referred
to in Section
2.05, and (c) 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 the American Depositary Shares evidenced by such
Receipt. If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of transfers
of
Receipts, shall suspend the distribution of dividends to the Owners thereof,
and
shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall
sell
rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, 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, in each case, the fee of the Depositary for the
26
surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration
of
one year from the date of termination, 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, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for
such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of
the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges) and
except
for its obligations to the Company under Section
5.08. Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08
and 5.09
hereof.
ARTICLE
7
MISCELLANEOUS
Section
7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original and all of such counterparts shall constitute one and the same
instrument. Copies of this Deposit Agreement shall be filed with the Depositary
and the Custodians and shall be open to inspection by any Owner of a Receipt
during business hours.
Section
7.02. No Third Party Beneficiaries. This Deposit
Agreement is for the exclusive benefit of the parties hereto and shall not
be
deemed to give any legal or equitable right, remedy or claim whatsoever to
any
other person.
Section
7.03. Severability. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should
be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein
or
therein shall in no way be affected, prejudiced or disturbed
thereby.
Section
7.04. Holders and Owners as Parties; Binding
Effect. The holders and Owners of Receipts from time to time
shall be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance
thereof.
27
Section
7.05. Notices. Any and all notices to be given to
the Company shall be deemed to have been duly given if personally delivered
or
sent by mail or cable, telex or facsimile transmission confirmed by registered
mail, addressed to YPF Sociedad Anónima, Av. Pte. ▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇, telecopy number (▇▇▇)
▇▇▇-▇▇▇▇, or any other place to which the Company may have transferred its
principal office.
Any
and
all notices to be given to the Depositary shall be deemed to have been duly
given if in English and personally delivered or sent by mail or cable, telex
or
facsimile transmission confirmed by registered mail, addressed to The Bank
of
New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telephone number
(▇▇▇)
▇▇▇-▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: American Depositary
Receipt
Administration, or any other place to which the Depositary may have transferred
its Corporate Trust Office.
Any
and
all notices to be given to any Owner shall be deemed to have been duly given
if
personally delivered or sent by mail or cable, telex or facsimile transmission
confirmed by letter, addressed to such Owner at the address of such Owner
as it
appears on the transfer books for Receipts of the Depositary, or, if such
Owner
shall have filed with the Depositary a written request that notices intended
for
such Owner be mailed to some other address, at the address designated in
such
request.
Delivery
of a notice sent by mail or cable, telex or facsimile transmission shall
be
deemed to be effective at the time when a duly addressed letter containing
the
same (or a confirmation thereof in the case of a cable, telex or facsimile
transmission) is deposited, postage prepaid, in a post-office letterbox.
The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as
aforesaid.
Section
7.06. Governing Law. This Deposit Agreement and
the Receipts shall be interpreted and all rights hereunder and thereunder
and
provisions hereof and thereof shall be governed by the laws of the State
of New
York.
Section
7.07. Compliance with U.S. Securities
Laws. Notwithstanding anything in this Deposit Agreement to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under this Deposit Agreement to prevent the withdrawal
or
delivery of Deposited Securities in a manner which would violate U.S. securities
laws including, but not limited to, Section IA(1) of the General Instructions
to
the Form F-6 Registration Statement, as amended time to time, under the
Securities Act of 1933.
IN
WITNESS
WHEREOF, YPF SOCIEDAD ANONIMA and THE BANK OF NEW YORK have duly executed
this
agreement as of the day and
28
year
first
set forth above and all Owners shall become parties hereto upon acceptance
by
them of Receipts issued in accordance with the terms hereof.
|
By:
|
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|
THE
BANK OF NEW YORK, as Depositary
|
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|
By:
|
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29
EXHIBIT
A
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary Share represents one deposited Share)
THE
BANK
OF NEW YORK
AMERICAN
DEPOSITARY RECEIPT
FOR
CLASS
D SHARES OF
PAR
VALUE
10 PESOS EACH OF
(INCORPORATED
UNDER THE LAWS OF
THE
REPUBLIC OF ARGENTINA)
The
Bank
of New York, as depositary (hereinafter called the
“Depositary”), hereby certifies that
____________________________________, or registered assigns IS THE OWNER
OF______________________________
AMERICAN
DEPOSITARY SHARES
representing
deposited Class D shares of par value 10 pesos each (herein called
“Shares”) of YPF SOCIEDAD ANONIMA, incorporated under the laws
of the Republic of Argentina (herein called the “Company”). At
the date hereof, each American Depositary Share represents 1 Share deposited
or
subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) with the Custodian. The Depositary’s Corporate Trust Office is located
at a different address than its principal executive office. Its Corporate
Trust
Office is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, and its principal
executive office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇.
THE
DEPOSITARY’S CORPORATE TRUST OFFICE ADDRESS IS ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇.▇. ▇▇▇▇▇
2. THE
DEPOSIT AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called
“Receipts”), all issued and to be issued upon the terms and
conditions set forth in the deposit agreement, dated as of June
17, 1993 (herein called the “Deposit Agreement”), by and
among the Company, the Depositary, and all Owners from time to time of Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a
party
thereto and become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Owners of the Receipts 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 are herein called “Deposited
A-1
Securities”).
Copies of the Deposit Agreement are on file at the Depositary’s Corporate Trust
Office in New York City and at the office of the Custodian.
The
statements made on the face and reverse of this Receipt are summaries of
certain
provisions of the Deposit Agreement and are qualified by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby
made.
Capitalized terms defined in the Deposit Agreement and not defined herein
shall
have the meanings set forth in the Deposit Agreement
3. SURRENDER
OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon
surrender at the Corporate Trust Office of the Depositary of this Receipt,
and
upon payment of the fee of the Depositary provided in this Receipt, and subject
to the terms and conditions of the Deposit Agreement, the Owner hereof is
entitled to delivery, to him or upon his order, of the Deposited Securities
at
the time represented by the American Depositary Shares for which this Receipt
is
issued. Delivery of such Deposited Securities may be made by the physical
or
electronic delivery of (a) certificates in the name of the Owner hereof or
as
ordered by him or certificates properly endorsed or accompanied by proper
instruments of transfer and (b) any other securities, property and cash to
which
such Owner is then entitled in respect of this Receipt. Such delivery will
be
made at the option of the Owner hereof, either at the office of the Custodian
or
at the Corporate Trust Office of the Depositary, provided that the
forwarding of certificates for Shares or other Deposited Securities for such
delivery at the Corporate Trust Office of the Depositary shall be at the
risk
and expense of the Owner hereof.
4. TRANSFERS,
SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable on the books of the Depositary at
its
Corporate Trust Office by the Owner hereof in person or by a duly authorized
attorney, upon surrender of this Receipt properly endorsed for transfer or
accompanied by proper instruments of transfer and funds sufficient to pay
any
applicable transfer taxes and the expenses of the Depositary and upon compliance
with such regulations, if any, as the Depositary may establish for such purpose.
This Receipt may be split into other such Receipts, or may be combined with
other such receipts into one Receipt, evidencing the same aggregate number
of
American Depositary Shares as the Receipt or Receipts surrendered. 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, the Custodian, or Registrar may require
payment from the depositor of the Shares or the presentor of the Receipt
of a
sum sufficient to reimburse it for any tax or other governmental charge and
any
stock transfer or
A-2
registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees
as
provided in this Receipt, may require the production of proof satisfactory
to it
as to the identity and genuineness of any signature and may also require
compliance with any regulations the Depositary may establish consistent with
the
provisions of the Deposit Agreement or this Receipt, including, without
limitation, this Article
3.
The
delivery of Receipts against deposits of Shares generally or against deposits
of
particular Shares may be suspended, or the 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 are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body
or
commission, or under any provision of the Deposit Agreement or this Receipt,
or
for any other reason, subject to the provisions of the following sentence.
Notwithstanding anything in the Deposit Agreement or the Receipts to the
contrary, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused
by
closing the transfer books of the Depositary or the Company or the deposit
of
Shares in connection with voting at a shareholders’ meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating
to
the Receipts or to the withdrawal of the Deposited Securities.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares which (a) if sold by the
holder
thereof in the United States (as defined in Regulation S under the Securities
Act of 1933) would be, to the actual knowledge of the Depositary, subject
to the
registration provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares or (b) the deposit of which would,
to
the actual knowledge of the Depositary, thereby infringe any provision of
the
by-laws of the Company.
5. LIABILITY
OF OWNER FOR TAXES.
If
any tax
or other governmental charge shall become payable with respect to any Receipt
or
any Deposited Securities represented hereby, such tax or other governmental
charge shall be payable by the Owner hereof to the Depositary. The Depositary
may refuse to effect any transfer of this Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions in respect of any Deposited Securities, or may sell for the
account of the Owner hereof any part or all of the Deposited
Securities
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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 or other governmental charge and the Owner hereof shall remain liable
for any deficiency.
6. WARRANTIES
OF DEPOSITORS.
Every
person depositing Shares hereunder and under the Deposit Agreement shall
be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, non-assessable, and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall
also be
deemed to represent that such Shares are not Restricted Securities as defined
in
the Deposit Agreement. Such representations and warranties shall survive
the
deposit of such Shares and issuance of Receipts.
7. FILING
PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any
person
presenting Shares for deposit or any Owner of a Receipt may be required from
time to time to file with the Depositary or the Custodian such proof of
citizenship or residence, exchange control approval, compliance with all
applicable laws and regulations or such information relating to the registration
on the books of the Company or the Foreign Registrar, if applicable, to execute
such certificates and to make such representations and warranties, as the
Depositary or the Company may deem necessary or proper. The Depositary may,
and
at the reasonable request of the Company shall, withhold the delivery or
registration of transfer of any Receipt or the distribution of any dividend
or
sale or distribution of rights or of the proceeds thereof or the delivery
of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. Upon
the
request of the Company, the Depositary shall provide the Company with copies
of
all such certificates and such written representations and warranties provided
to the Depositary under Section 3.01 of the Deposit Agreement. Each Owner
agrees
to provide any information requested by the Company or the Depositary pursuant
to this paragraph.
8. CHARGES
OF DEPOSITARY.
The
Company agrees to pay the fees, reasonable expenses and out-of-pocket charges
of
the Depositary and those of any Registrar only in accordance with agreements
in
writing entered into between the Depositary and the Company from time to
time.
The Depositary shall present its statement for such charges and expenses
to the
Company once every three months. The charges and expenses of the Custodian
are
for the sole account of the Depositary.
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The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to Section
4.03 of the Deposit Agreement), whichever applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time
be in
effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers
of
Shares to the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals under the terms of the Deposit
Agreement, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in the Deposit Agreement, (4) such reasonable and customary
expenses as are incurred by the Depositary in the conversion of foreign currency
pursuant to Section
4.05 of the Deposit Agreement, (5) a fee not in excess of $5.00 or less per
100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Sections 2.03
or 4.03
of the Deposit Agreement and the surrender of Receipts pursuant to Section
2.05 of the Deposit Agreement and (6) a fee for, and the deduction of such
fee
from, the distribution of proceeds of sales of securities or rights pursuant
to
Section 4.02
or 4.04,
respectively of the Deposit Agreement, such fee being in an amount equal
to the
fee for the issuance of American Depositary Shares referred to above which
would
have been charged as a result of the deposit by Owners of securities (for
purposes of this clause 6 treating all such securities as if they were Shares)
or Shares received in exercise of rights distributed to them pursuant to
Section
4.02
or 4.04,
respectively of the Deposit Agreement, but which securities or rights are
instead sold by the Depositary and the net proceeds distributed.
The
Depositary, subject to Article
8 hereof, may own and deal in any class of securities of the Company
and
its affiliates and in Receipts.
9. PRE-RELEASE
OF RECEIPTS.
Notwithstanding
Section
2.03 of the Deposit Agreement, the Depositary may execute and deliver Receipts
prior to the receipt of Shares pursuant to Section
2.02 of the Deposit Agreement (“Pre-Release”). The Depositary
may, pursuant to Section
2.05 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation
is
prior to the termination of such Pre-Release or the Depositary knows that
such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu
of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation from the person to whom Receipts
are
to be delivered that such person, or its customer, owns the Shares or Receipts
to be remitted, as the case may be, (b) at all times fully collateralized
with
cash or United States government securities until such
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Shares
are
deposited, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement
then outstanding; provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as
it
deems appropriate.
The
Depositary may retain for its own account any compensation received by it
in
connection with the foregoing, including interest on any collateral. The
Company
shall have no liability to the Depositary or any Owner with respect to any
representations, actions or omissions by the Depositary or any Owner in
connection with any Pre-Release.
10. TITLE
TO RECEIPTS.
It
is a
condition of this Receipt and every successive holder and Owner of this Receipt
by accepting or holding the same consents and agrees, that title to this
Receipt
when properly endorsed or accompanied by proper instruments of transfer,
is
transferable by delivery with the same effect as in the case of a negotiable
instrument governed by New York law, provided, however, that
the Company and 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 distribution of dividends or other distributions or to
any
notice provided for in the Deposit Agreement or for all other purposes and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under this Deposit Agreement to any holder of a Receipt
unless
such holder is the Owner hereof.
11. 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 shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for Receipts shall have been
appointed and the Receipts are countersigned by the manual signature of a
duly
authorized officer of the Registrar.
12. REPORTS;
INSPECTION OF TRANSFER BOOKS.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and, accordingly files certain reports with the
A-6
Commission.
Such reports and communications will be available for inspection and copying
by
holders and Owners at the public reference facilities maintained by the
Commission located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
The
Depositary will make available for inspection by Owners of Receipts at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received
by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also send to Owners of Receipts copies of such reports when
furnished by the Company pursuant to the Deposit Agreement. Any such reports
and
communications, including any such proxy soliciting material, furnished to
the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
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 the
Owners of Receipts provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
13. DIVIDENDS
AND DISTRIBUTIONS.
Whenever
the Depositary receives any cash dividend or other cash distribution on any
Deposited Securities, the Depositary will, if such cash is received in Foreign
Currency, subject to the provisions of Section
4.05 of the Deposit Agreement and to the following sentence, convert such
dividend or distribution into Dollars and will as promptly as practicable
distribute the amount thus received (net of the reasonable and customary
expenses incurred by the Depositary as provided in Article
7 hereof and Section
5.09 of the Deposit Agreement) to the Owners of Receipts entitled thereto,
provided, however, that in the event that 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 or other governmental charges, the amount distributed to
the
Owners of the Receipts evidencing American Depositary Shares representing
such
Deposited Securities shall be reduced accordingly.
Subject
to
the provisions of Section 4.11
and 5.09
of the Deposit Agreement, whenever the Depositary receives any distribution
other than a distribution described in Section 4.01,
4.03
or 4.04
of the Deposit Agreement, the Depositary will cause the securities or property
received by it to be distributed to the Owners of Receipts entitled thereto,
in
any manner that the Depositary may
A-7
deem
equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary
such distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as
it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities
or
property thus received, or any part thereof, and the net proceeds of any
such
sale shall be distributed by the Depositary to the Owners of Receipts entitled
thereto as in the case of a distribution received in cash.
Except
as
provided in the following paragraph, if any distribution consists of a dividend
in, or free distribution of, Shares, the Depositary may and shall if the
Company
shall so request, reflect on the records of the Depositary such increase
in the
aggregate number of American Depositary Shares representing such Shares,
or
distribute to the Owners of outstanding Receipts entitled thereto, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free distribution
subject to the terms and conditions of the Deposit Agreement with respect
to the
terms and conditions of the Deposit Agreement with respect to the deposit
of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided
in
Section
4.11 of the Deposit Agreement and the payment of the fees of the Depositary
as
provided in Article
7 hereof and Section
5.09 of the Deposit Agreement. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary will sell the
amount
of Shares represented by the aggregate of such fractions and distribute the
net
proceeds. If additional receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
If
any
dividend in, or free distribution of, Shares described in the preceding
paragraph consists of Shares that are not entitled to the same rights, including
rights with respect to dividends or other distributions, as Shares constituting
Deposited Securities, such dividend or free distribution shall be treated
by the
Depositary as a distribution in other than cash, Shares or rights in accordance
with Section
4.02 of the Deposit Agreement.
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 charge which the Depositary is obligated to withhold,
the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay any
such
taxes or charges, and the Depositary shall distribute the net proceeds of
any
such sale after deduction of such taxes or charges to the Owners of Receipts
A-8
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 the Deposit
Agreement.
14. RIGHTS.
In
the
event that the Company shall offer or cause to be offered to the holders
of any
Deposited Securities any rights to subscribe for additional Shares or any
rights
of any other nature, the Depositary, after consultation with the Company,
shall
have discretion as to the procedure to be followed in making such rights
available to any Owners or in disposing of such rights on behalf of any Owners
and making the net proceeds available to such Owners or, if by the terms
of such
rights offering or for any other reason, the Depositary may not either make
such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights
to
lapse. If at the time of the offering of any rights the Depositary determines
in
its discretion, after consultation with the Company, that it is lawful and
feasible to make such rights available to all or certain Owners but not to
other
Owners, the Depositary may, after consultation with the Company, distribute
to
any Owner to whom it determines the distribution to be lawful and feasible,
in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems
appropriate.
In
circumstances in which rights would otherwise not be distributed, if an Owner
of
Receipts requests the distribution of warrants or other instruments in order
to
exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and
(b)
such Owner has executed such documents as the Company has determined in its
sole
discretion are reasonably required under applicable law.
If
the
Depositary has distributed warrants or other instruments for rights to all
or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary to exercise such rights,
upon
payment by such Owner to the Depositary for the account of such Owner of
an
amount equal to the purchase price of the Shares to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary and
any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares,
and
the Company shall cause the Shares so purchased to be delivered to the
Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will
cause the Shares so purchased to be deposited pursuant to Section
2.02 of the Deposit Agreement, and shall, pursuant to Section
2.03 of the Deposit Agreement, execute and deliver Receipts representing
American Depositary Shares evidencing such
A-9
Shares
to
such Owner. In the case of a distribution pursuant to the second paragraph
of
this Article, such Receipt shall be legended in accordance with applicable
U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation and transfer under such laws.
If
the
Depositary determines in its discretion, after consultation with the Company,
that it is not lawful and feasible to make such rights available to all or
certain Owners, it may sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by the Owners
to
whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of fees as provided
under the Deposit Agreement and all taxes and governmental charges payable
in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical
basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
If
registration under the Securities Act of 1933 of the rights or of the securities
to which any rights relate is required in order for the Company to offer
such
rights to Owners and sell the securities upon the exercise of such rights
to
Owners, the Depositary will not offer such rights to the Owners having an
address in the United States unless and until such a registration statement
is
in effect, or unless the offering and sale of such securities to the Owners
of
such Receipts are exempt from registration under the provisions of such Act.
Notwithstanding any terms of this Deposit Agreement to the contrary, the
Company
shall have no obligation to prepare and file a registration statement for
any
purpose.
The
Depositary shall not be responsible for any failure to determine that it
may be
lawful or feasible to make such rights available to Owners in general or
any
Owner in particular.
15. CONVERSION
OF FOREIGN CURRENCY.
Subject
to
any restrictions imposed by Argentine laws, regulations or applicable permits
issued by any Argentine governmental body, whenever the Depositary shall
receive
foreign currency, by way of dividends or other distributions or the net proceeds
from the sale of securities, property or rights, and if at the time of the
receipt thereof the foreign currency so received can in the judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall as promptly
as
practicable convert or cause to be converted, by sale or in any other manner
that it may determine, such foreign currency into Dollars, and such Dollars
shall be distributed (except as provided in Section
4.01 of the Deposit Agreement) to the Owners entitled thereto or, if the
Depositary shall have
A-10
distributed
any warrants or other instruments which entitle the holders thereof to such
Dollars, then to the holders of such warrants and/or instruments upon surrender
thereof for cancellation. Such distribution may be made upon an averaged
or
other practicable basis without regard to any distinctions among Owners on
account of exchange restrictions, the date of delivery of any Receipt or
otherwise and shall be net of any reasonable and customary expenses of
conversion into Dollars incurred by the Depositary as provided in Section
5.09 of the Deposit Agreement.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, then such conversion or distribution shall
be
done only with such approval or license.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary is not convertible on a reasonable basis into
Dollars
transferable to the United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied
or
in the opinion of the Depositary is not obtainable, of if any such approval
or
license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the foreign currency (or an
appropriate document evidencing the right to receive such foreign currency)
received by the Depositary to, or in its discretion may hold such foreign
currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Owners entitled thereto, the Depositary may in
its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance
of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of,
the
Owners entitled thereto.
16. RECORD
DATES.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever 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, the Depositary
shall fix a record date, which date shall, to the extent practicable, be
the
same record date fixed by the Company (a) for the determination of the Owners
of
Receipts who shall be (i) entitled to receive such dividend, distribution
or
rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the
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exercise
of voting rights at any such meeting, or (b) on or after which each American
Depositary Share will represent the changed number of Shares, subject to
the
provisions of the Deposit Agreement.
17. VOTING
OF DEPOSITED SECURITIES.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall, as soon as practicable thereafter, mail
or
caused to be mailed to the Owners of Receipts a notice, the form of which
notice
shall be subject to the reasonable discretion of the Depositary and any
applicable provision of Argentine law, if any, that governs such notice,
which
shall contain (a) such information as is contained in such notice of meeting
received by the Depositary from the Company, (b) a statement that the Owners
of
Receipts as of the close of business on a specified record date will be
entitled, subject to any applicable provision of Argentine law and of the
by-laws of the Company and the provisions of the Shares or other Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given. Upon the written
request of an Owner of 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 to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares in accordance with the instructions set forth in such request. The
Depositary shall not vote Shares or other Deposited Securities represented
by
the American Depositary Shares except in accordance with instructions received
from an Owner; provided, however, that if no such instructions
are received, the Depositary shall vote the Shares or other Deposited Securities
represented by the American Depositary Shares in accordance with the
recommendations of the Board of Directors of the Company made to all holders
of
Shares, unless prohibited from doing so by any applicable provisions of
Argentine law, and if no such recommendations are made it shall not vote
such
Shares or other Deposited Securities. Notwithstanding the foregoing, the
Depositary shall not be required to vote such Shares in accordance with the
recommendations of the Board of Directors, if made, unless the Company has
provided to the Depositary a copy of an opinion of Argentine counsel stating
that the action recommended by the Board of Directors for approval by holders
of
Shares is not in contravention of Argentine law or regulations, if any, or
the
by-laws of the Company.
In
addition, at any meeting of holders of Shares or other Deposited Securities,
the
Depositary shall, if requested by the Board of Directors of the Company,
and
unless prohibited by any applicable provisions by Argentine law, deposit
all
Shares or other Deposited Securities represented by the American
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Depositary
Shares for purposes of establishing a quorum at such meetings, whether or
not
voting instructions with respect thereto have been received.
18. CHANGES
AFFECTING DEPOSITED SECURITIES.
In
circumstances where the provisions of Section
4.03 of the Deposit Agreement do not apply, upon any change in nominal value,
change in par value, split-up, consolidation, or any other reclassification
of
Deposited Securities, or upon any recapitalization, reorganization, merger
or
consolidation, or sale of assets affecting the Company or to which it is
a
party, any securities which shall be received by the Depositary or a Custodian
in exchange for or in conversion of or in respect of Deposited Securities
shall
be treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition or in replacement
as
applicable to the existing Deposited Securities, the new Deposited Securities
so
received in exchange or conversion, unless additional Receipts are delivered
pursuant to the following sentence. In any such case the Depositary may,
after
consultation with the Company and shall if the Company shall so request,
execute
and deliver additional Receipts as in the case of a dividend in Shares, or
call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
19. LIABILITY
OF THE COMPANY AND DEPOSITARY.
Neither
the Depositary nor the Company shall incur any liability to any Owner or
holder
of any Receipt, if by reason of any provision of any present or future law
or
regulation of the United States, Argentina or any other country, or of any
other
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the by-laws of the Company, or by reason
of any
provisions of any securities issued or distributed by the Company or by reason
of any act of God or war or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed or forbidden from or
be
subject to any civil or criminal penalty on account of doing or performing
any
act or thing which by the terms of the Deposit Agreement it is provided shall
be
done or performed; nor shall the Depositary or the Company incur any liability
to any Owner or holder of a Receipt by reason of any non-performance or delay,
caused as aforesaid, in the performance of any act or thing which by the
terms
of the Deposit Agreement it is provided shall or may be done or performed,
or by
reason of any exercise of, or failure to exercise, any discretion provided
for
in the Deposit Agreement. Where, by the terms of a distribution pursuant
to
Sections 4.01,
4.02
or 4.03
of the Deposit Agreement, or an offering or distribution pursuant to Section
4.04 of the Deposit Agreement, or for any other reason, such distribution
or
offering may not be made available to Owners of Receipts, and the Depositary
may
not dispose of such distribution or offering on behalf of such Owners and
make
the net proceeds available to such Owners, then the Depositary
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shall
not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse. Neither the Company nor the Depositary assumes any obligation or
shall
be subject to any liability under the Deposit Agreement to Owners or holders
of
Receipts, except that they agree to perform their obligations specifically
set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth
of
the Deposited Securities. Neither the Depositary nor the Company shall be
under
any obligation to appear in, prosecute or defend any action, suit, or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses and liability shall be furnished
as
often as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Company shall
be
liable for any action or nonaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares
for
deposit, any Owner of a Receipt, or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary
shall
not be responsible 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
the effect of any such vote, provided that any such action or nonaction
is in good faith. The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act
or
omission of the Depositary or in connection with a matter arising wholly
after
the removal or resignation of the Depositary, provided that in
connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while
it
acted as Depositary. The Company agrees to indemnify the Depositary and any
Custodian against, and hold each of them harmless from, any liability or
expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may
be
amended, modified, or supplemented from time to time, (i) by either the
Depositary or a Custodian, except for any liability or expense arising out
of
the negligence (including the negligent failure by the Depositary or Custodian
to comply with any provision of the Deposit Agreement or of the Receipts,
as the
same may be amended, modified or supplemented from time to time) or bad faith
of
either of them, or (ii) by the Company or any of its agents; provided,
however, that such indemnity shall not extend to any expenses
of the
Depositary that, pursuant to the Deposit Agreement or any supplemental fee
or
other agreement, are not payable by the Company. No disclaimer of liability
under the Securities Act of 1933 is intended by any provisions of the Deposit
Agreement.
20. RESIGNATION
AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN.
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The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election so to do delivered to the Company, such resignation to take
effect
upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any
time
be removed by the Company by written notice of such removal, effective upon
the
appointment of a successor depositary and its acceptance of such appointment
as
provided in the Deposit Agreement. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners of Receipts to do
so,
it may appoint a substitute or additional custodian or custodians.
21. AMENDMENT.
The
form
of the Receipts and any provisions of the Deposit Agreement may at any time
and
from time to time be amended by agreement between the Company and the Depositary
in any respect which they may deem necessary or desirable. Any amendment
which
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts,
shall,
however, not become effective as to outstanding Receipts until the expiration
of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner of a Receipt at the time any amendment
so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement
as
amended thereby. In no event shall any amendment impair the right of the
Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law.
22. TERMINATION
OF DEPOSIT AGREEMENT
The
Depositary at any time at the direction of the Company shall terminate the
Deposit Agreement by mailing notice of such termination to the Owners of
all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners
of
all Receipts then outstanding if at any time 90 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed
and
accepted its appointment as provided in the Deposit Agreement. On and after
the
date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the
fee
of the Depositary for the surrender of Receipts referred to in Section
2.05 of the Deposit Agreement, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order,
of the
amount of Deposited
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Securities
represented by the American Depositary Shares evidenced by such Receipt.
If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners 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,
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, in each case,
the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges).
At
any time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such
sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement, except to account for such net proceeds and
other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary with respect
to
indemnification, charges, and expenses.
23. DISCLOSURE
OF INTERESTS
The
Company may from time to time request Owners to provide information as to
the
capacity in which such Owners own or owned Receipts and regarding the identity
of any other persons then or previously interested in such Receipts and the
nature of such interest. Each Owner agrees to provide any such information
to
the Company or the Depositary.
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