**Exhibit 2.1**

 

 

 

CORIMON,C.A.

 

AND

 

MORGANGUARANTY TRUST COMPANY OF NEW YORK,

 

AsDepositary

 

AND

 

HOLDERSOF AMERICAN DEPOSITARY RECEIPTS

 

----

 

Amendedand Restated Deposit Agreement

 

Datedas of July 6, 2000

 

to

 

DepositAgreement

 

Datedas of November 14, 1991 as amended and restated as of March 15, 1993as thereafter amended prior hereto

 

 

 

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TABLEOF CONTENTS

 
| PARTIES            |                         |   |
|--------------------|------------------------------|--------|
| RECITALS           |                         |   |
|               |                         |   |
| ARTICLE I     |
|               |
| Definitions        |
|               |                         |   |
| SECTION 1.01. | American Depositary Shares   |   |
| SECTION 1.02. | Commission                   |   |
| SECTION 1.03. | Custodian                    |   |
| SECTION 1.04. | Deliver, Execute, et al.     |   |
| SECTION 1.05. | Deposit Agreement            |   |
| SECTION 1.06. | Depositary’s  Office    |   |
| SECTION 1.07. | Deposited  Securities        |   |
| SECTION 1.08. | Direct  Registration Receipt |   |
| SECTION 1.09. | Direct  Registration System  |   |
| SECTION 1.10. | Dollars, U.S.  Dollars       |   |
|                    |                              |        |  |

 

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| SECTION 1.11.                                                                                                | Holder                                                                                                  |   |
|-------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------------------------------------------|--------|
| SECTION 1.12.                                                                                                | Receipt Register                                                                                        |   |
| SECTION 1.13.                                                                                                | Receipts                                                                                                |   |
| SECTION 1.14.                                                                                                | Securities Act of  1933; Securities Exchange Act of 1934                                                |   |
| SECTION 1.15.                                                                                                | Shares                                                                                                  |   |
|                                                                                                              |                                                                                                    |   |
| ARTICLE II                                                                                                   |
|                                                                                                              |                                                                                                    |   |
| Form of Receipts,  Deposit of Shares,  Execution and Transfer of Receipts and  Withdrawal of Deposited Securities |
|                                                                                                              |
| SECTION 2.01.                                                                                                | Form and  Transferability of Receipts                                                                   |   |
| SECTION 2.02.                                                                                                | Deposit of Shares                                                                                       |   |
| SECTION 2.03.                                                                                                | Execution and  Delivery of Receipts                                                                     |   |
| SECTION 2.04.                                                                                                | Transfer,  Combination and Split-up of Receipts                                                         |   |
| SECTION 2.05.                                                                                                | Withdrawal of  Deposited Securities                                                                     |   |
| SECTION 2.06.                                                                                                | Limitations on  Execution and Delivery and Transfer of Receipts and Withdrawal of Deposited  Securities |   |

 

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| SECTION 2.07.              | Substitution of  Receipts                 |   |
|---------------------------------|-------------------------------------------|--------|
| SECTION 2.08.              | Cancellation and  Destruction of Receipts |   |
|                            |                                      |   |
| ARTICLE III                |
|                            |                                      |   |
| Certain Obligations of  Holders |
|                            |                                      |   |
| SECTION 3.01.              | Information                               |   |
| SECTION 3.02.              | Liability of  Holder for Taxes            |   |
| SECTION 3.03.              | Warranties on  Deposit of Shares.         |   |
| SECTION 3.04.              | Disclosure of  Interests                  |   |
|                            |                                      |   |
| ARTICLE IV                 |
|                            |                                      |   |
| Deposited  Securities           |
|                            |                                      |   |
| SECTION 4.01.              | Cash  Distributions                       |   |
| SECTION 4.02.              | Share  Distributions                      |   |

 

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| SECTION 4.03.              | Rights Distributions                                                                                       |   |
|---------------------------------|------------------------------------------------------------------------------------------------------------|--------|
| SECTION 4.04.              | Other  Distributions                                                                                       |   |
| SECTION 4.05.              | Conversion of  Foreign Currency                                                                            |   |
| SECTION 4.06.              | Fixing of Record  Date                                                                                     |   |
| SECTION 4.07.              | Voting of  Deposited Securities                                                                            |   |
| SECTION 4.08.              | Changes Affecting  Deposited Securities                                                                    |   |
| SECTION 4.09.              | Withholding                                                                                                |   |
|                            |                                                                                                       |   |
| ARTICLE V                  |
|                            |                                                                                                       |   |
| The Depositary  and the Company |
|                            |                                                                                                       |   |
| SECTION 5.01.              | Maintenance of  Depositary’s Office and Register; Certain Agents of the Depositary; Lists of  Holders |   |

 

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| SECTION 5.02. | Prevention or  Delay in Performance                                              |   |
|--------------------|----------------------------------------------------------------------------------|--------|
| SECTION 5.03. | Obligations  Limited                                                             |   |
| SECTION 5.04. | Resignation and  Removal of the Depositary; Appointment of Success or Depositary |   |

 

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| SECTION 5.05. | The Custodian                            |   |
|--------------------|------------------------------------------|--------|
| SECTION 5.06. | Notices and  Reports to Holders          |   |
| SECTION 5.07. | Issuance of  Additional Shares, etc      |   |
| SECTION 5.08. | Indemnification                          |   |
| SECTION 5.09. | Charges of  Depositary                   |   |
| SECTION 5.10. | Statutory Reports                        |   |
| SECTION 5.11. | Available  Information to the Commission |   |

 

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| ARTICLE VI           |
|---------------------------|
|                      |   |   |
| Amendment and Termination |
|                      |   |   |
| SECTION 6.01.        | Amendment |   |
| SECTION 6.02.        | Termination |   |
|                      |   |   |
| ARTICLE VII          |
|                      |   |   |
| Miscellaneous             |
|                      |   |   |
| SECTION 7.01.        | Counterparts |   |
| SECTION 7.02.        | No Third Party  Beneficiaries |   |
| SECTION 7.03.        | Severability |   |
| SECTION 7.04.        | Holders Parties;  Binding Effect |   |
| SECTION 7.05.        | Notices |   |
| SECTION 7.06.        | Governing Law |   |
| TESTIMONIUM               |   |   |
| SIGNATURES                |   |   |
|                      |   |   |
| EXHIBIT A                 |
|                      |   |   |
| FORM  OF FACE OF RECEIPT  |   |
|                      |   |
|                      | Introductory Paragraph |   |   |
|                      |   |
|                      | (1) | The Deposit Agreement |   |
|                      | (2) | Withdrawal  of Deposited Securities |   |
|                      | (3) | Transfers,  Split-ups and Combinations |   |
|                      | (4) | Certain  Limitations |   |
|                      | (5) | Liability  of Holder for Taxes |   |
|                      | (6) | Warranties  by Depositor |   |
|                      | (7) | Disclosure of  Interests |   |
|                      | (8) | Charges  of Depositary |   |
|                      | (9) | Title to  Receipts |   |
|                      | (10) | Validity of Receipt |   |
|                      | (11) | Available  Information |   |
|                      |   |
|                      | Signature  of Depositary |   |   |
|                      |   |   |   |
|                      | Address of Depositary’s  Office |   |
|                           |  |  |  |  |

 

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| FORM OF REVERSE OF  RECEIPT |   |
|-----------------------------|--------|
|                        |   |   |
|                        | (12)   | Distributions  upon Deposited Securities |   |
|                        | (13)   | Record Dates |   |
|                        | (14)   | Voting of Deposited  Securities |   |
|                        | (15)   | Changes  Affecting Deposited Securities |   |
|                        | (16)   | Reports; Inspection of  Register |   |
|                        | (17)   | Withholding |   |
|                        | (18)   | Liability of  the Company and the Depositary |   |
|                        | (19)   | Resignation  and Removal of Depositary; the Custodian |   |
|                        | (20)   | Amendment  of Deposit Agreement and Receipts |   |
|                        | (21)   | Termination  of Deposit Agreement |   |
|                        |   |   |   |
| EXHIBIT B                   |
|                        |   |   |
| CHARGES OF THE DEPOSITARY   |   |
|                             |        |  |  |  |

 

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AMENDEDAND RESTATED DEPOSIT AGREEMENT dated as of July 6, 2000 to DepositAgreement dated as of November 14, 1991 as amended and restated as ofMarch 15, 1993 as thereafter amended prior hereto, among CORIMON, C.A., acorporation organized under the laws of Venezuela and its successors (the“Company”), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York corporation,as depositary hereunder and any successor as depositary hereunder (the“Depositary”), and all holders from time to time of American DepositaryReceipts issued hereunder.

 

WITNESSETH:

 

WHEREAS, the Company desires to amend and restate the DepositAgreement dated as of November 14, 1991 as amended and restated as ofMarch 15, 1993 as thereafter amended prior hereto (the “OriginalDeposit Agreement”) provide for the deposit of Shares of the Company from timeto time with the Depositary or the Custodian and for the execution and deliveryof American Depositary Receipts evidencing the American Depositary Sharesrepresenting the Shares so deposited; and

 

WHEREAS, the American Depositary Receiptsissued in certificated form are to be substantially in the form of Exhibit Aannexed hereto;

 

NOW, THEREFORE, in consideration of the premises, itis agreed by and among the parties hereto that the Original Deposit Agreementis hereby amended and restated in its entirety to read as follows effective asof the date first above written:

 

ARTICLE I

 

Definitions

 

SECTION 1.01.                                                      The term “AmericanDepositaryShares” shall mean the rights evidenced by the Receiptsexecuted and delivered hereunder, including the interests in the DepositedSecurities granted to the Holders of Receipts pursuant to the terms andconditions of this Deposit Agreement. Each American Depositary Share shall represent rights to receive 5000Shares until there shall occur a distribution upon Deposited Securitiesreferred to in Section 4.02 or a change in Deposited Securities referredto in Section 4.08 with respect to which additional Receipts are notexecuted and delivered, and thereafter each American Depositary Share shallrepresent the right to receive the Deposited Securities specified in suchSections.

 

SECTION 1.02.                                                      The term “Commission”shall mean the Securities and Exchange Commission of the United States or anysuccessor governmental agency.

 

SECTION 1.03.                                                      The term “Custodian”shall mean one or more agent or agents of the Depositary (singly orcollectively, as the context requires) named as Custodian in Exhibit A annexedhereto and any additional or substitute Custodian appointed pursuant toSection 5.05.

 

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SECTION 1.04.                                                      The terms “deliver”,“execute”, “issue”, “register”, “surrender”, “transfer”or “cancel”, when used with respect to Direct Registration Receipts,shall refer to an entry or entries or an electronic transfer or transfers inthe Direct Registration System.

 

SECTION 1.05.                                                      The term “DepositAgreement” shall mean this Agreement, as the same may be amended from timeto time in accordance with the provisions hereof.

 

SECTION 1.06.                                                      The term “Depositary’sOffice” shall mean the office of the Depositary for the administration ofdepositary receipts.

 

SECTION 1.07.                                                      The term “DepositedSecurities” as of any time shall mean all Shares at such time depositedunder this Deposit Agreement and any and all other Shares, securities, propertyand cash received at any time by the Depositary or the Custodian in respect orin lieu of such deposited Shares and other Shares, securities, property andcash at such time held hereunder.

 

SECTION 1.08.                                                      The term “DirectRegistration Receipt” means a Receipt, the ownership of which is recordedon the Direct Registration System.

 

SECTION 1.09.                                                      The term “DirectRegistration System” means the direct registration system maintained by theDepositary, pursuant to which the Depositary may record the ownership ofuncertificated Receipts, which ownership shall be evidenced by periodicstatements issued by the Depositary to the Holders entitled thereto.

 

SECTION 1.10.                                                      The term “dollars”or “U.S. dollars” shall mean the lawful currency of the United States ofAmerica. The term “bolivares” or “Bs.” shall mean the lawfulcurrency of Venezuela.

 

SECTION 1.11.                                                      The term “Holder”shall mean the person or persons in whose name a Receipt is registered on theReceipt Register maintained by the Depositary for such purpose.

 

SECTION 1.12.                                                      The term “Receiptregister” means the register maintained by the Depositary for theregistration of transfer, combination and split-up of Receipts, and, in thecase of Direct Registration Receipts, shall include the Direct RegistrationSystem.

 

SECTION 1.13.                                                      The term “Receipts”shall mean the American Depositary Receipts executed and deliveredhereunder.  Receipts may be either inphysical certificated form or Direct Registration Receipts.  Receipts in physical certificated form shallbe in substantially the form of Exhibit A hereto, evidencing AmericanDepositary Shares, as the same may be amended from time to time in accordancewith the provisions hereof.  Referencesto “Receipts” shall include Direct Registration Receipts, unless the contextotherwise requires.

 

SECTION 1.14.                                                      The term “SecuritiesAct of 1933” shall mean the United States Securities Act of 1933, as fromtime to time amended.  The term “SecuritiesExchange Act of 1934” shall mean the United States Securities Exchange Actof 1934, as from time to time amended.

 

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SECTION 1.15.                                                      The term “Shares”shall mean the fully paid Ordinary Shares, nominal value Bs. 10.00 per share,of the Company and shall include rights to receive Shares.

 

ARTICLE II

 

Formof Receipts, Deposit of Shares,Execution and Transfer of Receipts andWithdrawal of Deposited Securities

 

SECTION 2.01.                                                      Form andTransferability ofReceipts. (a)  CertificatedReceipts.  Receipts in certificatedform shall be engraved or printed or lithographed on steel-engraved borders andshall be substantially in the form set forth in Exhibit A annexed hereto, withappropriate insertions, modifications and omissions as hereinafterprovided.  Receipts may be issued indenominations of any number of American Depositary Shares. Receipts incertificated form shall be executed by the Depositary by the manual orfacsimile signature of a duly authorized officer of the Depositary.  Unless so executed, no Receipt in certificatedform shall be entitled to any benefits under this Deposit Agreement or be validor obligatory for any purpose.  TheDepositary shall maintain the Receipt register in which each Receipt soexecuted and delivered as hereinafter provided and the transfer of each suchReceipt shall be registered.  Receiptsin certificated form bearing the facsimile signature of anyone who was at anytime a duly authorized officer of the Depositary shall bind the Depositary,notwithstanding that such officer has ceased to hold such office prior to thedelivery of such Receipts. Receipts in certificated form may, with the priorwritten consent of the Company (which consent shall not be unreasonablywithheld), be endorsed with or have incorporated in the text thereof suchlegends or recitals or changes not inconsistent with this Deposit Agreement asmay be required by the Depositary in respect of its obligations hereunder or asmay be required to comply with any applicable law or regulations or with therules and regulations of any securities exchange upon which Receipts may betraded or to conform with any usage with respect thereto, or to indicate anyspecial limitations or restrictions to which any particular Receipts aresubject by reason of the date of issuance of the underlying DepositedSecurities or otherwise.

 

(b)                                 DirectRegistration Receipts. Notwithstanding anything in this DepositAgreement or in the Receipt to the contrary, American Depositary Shares shallbe evidenced by Direct Registration Receipts, unless certificated Receipts arespecifically requested by the Holder and for no additional fee. Holders shallbe bound by the terms and conditions of this Deposit Agreement and of the formof Receipt, regardless of whether their Receipts are Direct RegistrationReceipts or certificated Receipts.

 

(c)                                  Transferability.               Title to aReceipt (and to the Deposited Securities represented by the American DepositaryShares evidenced thereby), when properly endorsed (in the case of Receipts incertificated form) or upon  delivery tothe Depositary of properly executed instruments of transfer, shall betransferable by delivery with the same effect as in the case of a negotiableinstrument, shall be transferable by delivery with the same effect as in thecase of a negotiable instrument; provided that the Company and theDepositary, notwithstanding any notice to the contrary, may treat the Holderthereof as the absolute owner thereof for the purpose

 

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of determining the person entitled toany distribution or notice and for all other purposes.

 

SECTION 2.02.                                                      Deposit ofShares.  (a)  Deposit with Custodian.  Shares may be deposited under this DepositAgreement by delivery thereof to the Custodian, properly endorsed oraccompanied by a duly executed instrument or instruments of transfer in formsatisfactory to the Custodian, together with any other documents and paymentsrequired under this Deposit Agreement, and a written order directing theDepositary to issue to, or upon the written order of, the person or personsstated in such order a Receipt or Receipts through the Direct RegistrationSystem (or if specifically requested, certificated Receipts) for the number of American Depositary Sharesrepresenting such deposited Shares.  Atthe request, risk and expense of any holder of Shares, and for the account ofsuch holder, the Depositary may receive certificates for Shares to bedeposited, together with any other documents and payments required under thisDeposit Agreement, for the purpose of forwarding such Share certificates to theCustodian for deposit hereunder.

 

(b)                                 Assignmentand Proxy.  If required by theDepositary, Shares presented for deposit at any time, whether or not anyregister of Shareholders of the Company is closed, shall also be accompanied by(1) an agreement or assignment, or other instrument satisfactory to theDepositary, which will provide for the prompt transfer to the Depositary, theCustodian or a nominee of any dividend or right to subscribe for additionalShares or to receive other property which any person in whose name the Sharesare or have been recorded may thereafter receive upon or in respect of suchdeposited Shares, or in lieu thereof such agreement of indemnity or otheragreement as shall be satisfactory to the Depositary, and (2) if the Shares areregistered in the name of the person on whose behalf they are presented fordeposit, a proxy or proxies entitling the Depositary, the Custodian or anominee to vote such deposited Shares for any and all purposes until the Sharesare registered in the name of the Depositary, the Custodian or a nominee.

 

(c)                                  Registrationand Holding.  Upon each delivery tothe Custodian of a certificate or certificates for Shares (or other DepositedSecurities pursuant to Section 4.02, 4.03, 4.04 or 4.08) in registered formto be deposited hereunder, together with any other documents and paymentsrequired under this Deposit Agreement, the Custodian shall as soon aspracticable present such certificate or certificates for registration oftransfer of the Shares (or other Deposited Securities) being deposited in thename of the Depositary, the Custodian or a nominee at the cost and expense ofthe person making such deposit (or for whose benefit such deposit is made) andshall obtain evidence satisfactory to it of such registration.  Deposited Securities shall be held by theCustodian for the account and to the order of the Depositary at such place orplaces as the Depositary shall determine.

 

SECTION 2.03.                                                      Executionand Delivery of Receipts. After the deposit of any Shares pursuantto Section 2.02, the Custodian shall notify the Depositary of such depositand the person or persons to whom or upon whose written order a Receipt orReceipts are deliverable in respect thereof and the number of AmericanDepositary Shares to be evidenced thereby. Such

 

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notification shall be made by letter,first class airmail postage prepaid, or, at the request, risk and expense ofthe person making the deposit, by cable, telex or facsimile transmission. Afterreceiving such notice from the Custodian, the Depositary, subject to thisDeposit Agreement, shall issue to or upon the order of the person or personsnamed in the notice delivered to the Depositary, a Receipt or Receipts,registered in the name or names requested by such person or persons, andevidencing in the aggregate the number of American Depositary Shares to whichsuch person or persons are entitled. The Depositary shall execute and deliver Receipts only in accordancewith this Section 2.03 and with Sections 2.04, 2.06, 4.02, 4.03 and 4.08.

 

SECTION 2.04.                                                      Transfer,Combination and Split-upof Receipts.  The Depositary, subject to this DepositAgreement, shall register transfers of Receipts in the Receipt register fromtime to time upon receipt at any of its designated transfer offices of properinstruments of transfer or upon any surrender of a Receipt at any of itsdesignated transfer offices by the Holder in person or by duly authorizedattorney, properly endorsed or accompanied by proper instruments of transfer,and duly stamped as may be required by applicable law.  Thereupon the Depositary shall execute a newReceipt or Receipts and deliver the same to or upon the order of the personentitled thereto evidencing the same aggregate number of American DepositaryShares as those evidenced by the Receipts replaced.  At the request of a Holder, the Depositary shall, for the purposeof substituting a certificated Receipt with a Direct Registration Receipt, orvice versa, execute and deliver a certificated Receipt or a Direct RegistrationReceipt, as the case may be, for any authorized number of American DepositaryShares requested, evidencing the same aggregate number of American DepositaryShares as those evidenced by the certificated Receipt or Direct RegistrationReceipt, as the case may be. The Depositary, subject to this Deposit Agreement,shall upon surrender at any of its designated transfer offices of a Receipt orReceipts for the purpose of effecting a split-up or combination of such Receiptor Receipts, execute and deliver a new Receipt or Receipts for any authorizednumber of American Depositary Shares requested, evidencing the same aggregatenumber of American Depositary Shares as those evidenced by the Receipt orReceipts surrendered.  The Depositarymay close the Receipt register at any time or from time to time, when deemedexpedient by it in connection with the performance of its duties hereunder orat the request of the Company.

 

SECTION 2.05.                                                      Withdrawalof Deposited Securities. Upon receipt at the Depositary’s Officeor at such other offices as the Depositary may designate of a Holder’s writtenorder directing the Depositary to cause the Deposited Securities represented bythe American Depositary Shares evidenced by a Receipt to be withdrawn anddelivered to or upon the written order of the person or persons designated insuch order, and upon the surrender, if applicable, of a Receipt (properlyendorsed in blank or accompanied by proper instruments of transfer in blank, tothe extent required by the Depositary), the Depositary shall direct theCustodian to deliver without unreasonable delay, subject to this DepositAgreement and to the provisions of or governing Deposited Securities, to orupon the written order of the person or persons designated in such order, theDeposited Securities at the time represented by the American Depositary Sharesevidenced by such Receipt, and the Custodian shall so deliver such DepositedSecurities, at the principal executive office of the Custodian in Caracas,Venezuela, except that the Depositary may, 

 

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inits discretion, at the request, risk and expense of the Holder make delivery ofsuch Deposited Securities without unreasonable delay to such person or personsat the Depositary’s Office or at any other place specified by the Holder insuch order. Directions shall be given by letter or, at the request, risk andexpense of the Holder, by cable, telex or facsimile transmission. Delivery ofDeposited Securities may be made by the delivery of certificates, to the extentsuch Deposited Securities may be represented by certificates, which, ifrequired by law, shall be properly endorsed or accompanied by properly executedinstruments of transfer, and if such certificates may be so registered,registered in the name of such Holder, or as ordered by such Holder or properlyendorsed or accompanied by proper instruments of transfer.  Neither the Depositary nor the Custodianshall deliver Deposited Securities to any person except pursuant to thisSection 2.05 or Sections 4.01, 4.02, 4.03, 4.04, 4.08, 4.09, 5.04, 5.05,6.01 or 6.02.  Notwithstanding anyprovision of this Deposit Agreement or the Receipts, the Depositary mayrestrict withdrawals of Deposited Securities only for the reasons set forth inGeneral Instruction I.A. (1) of Form F-6 (as such instructions may be amendedfrom time to time) under the Securities Act of 1933.

 

SECTION 2.06.                                                      Limitationson Issuance, Execution and Delivery and Transfer of Receipts and Withdrawal ofDeposited Securities. As a condition precedent to the issuance, execution and delivery,registration, registration of transfer, split-up or combination of any Receipt,the delivery of any distribution thereon or, subject to the last sentence ofSection 2.05, the withdrawal of any Deposited Securities, the Depositary,the Company or the Custodian may require of the Holder, the presentor of theReceipt or the depositor of Shares: (a) payment of a sum sufficient to pay orreimburse it for payment of (i) any stock transfer or other tax or othergovernmental charge with respect thereto, (ii) any stock transfer orregistration fees for the registration of transfers of Shares or otherDeposited Securities upon any applicable register and (iii) any charges of theDepositary upon delivery of Receipts against deposits of Shares and uponwithdrawal of Deposited Securities against surrender of Receipts as set forthin Exhibit B to this Deposit Agreement; (b) the production of proofsatisfactory to it as to the identity and genuineness of any signature and asto any other matter contemplated by Section 3.01; and, (c) compliance withsuch reasonable regulations, if any, as the Depositary and the Company mayestablish consistent with the provisions of this Deposit Agreement.  The delivery of Receipts against deposits ofShares may be suspended, deposits of Shares may be refused, or the registrationof transfer of Receipts, their split-up or combination or, subject to the lastsentence of Section 2.05, the withdrawal of Deposited Securities may besuspended, in particular instances or generally, when the Receipt register orany register for Shares or other Deposited Securities is closed, or any time orfrom time to time when any such action is deemed necessary or advisable by theDepositary or the Company for any reason, including without limitation anyrequirement of law or of any government or governmental body or commission, anyprovision of this Deposit Agreement or the provisions of or governing DepositedSecurities, any meeting of Shareholders or any payment of dividends.  The Depositary may issue Receipts againstrights to receive Shares from the Company, or any registrar, transfer agent,clearing agency or other entity recording Share ownership or transactions.  The Depositary will not issue Receiptsagainst

 

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otherrights to receive Shares unless (x) such Receipts are fully collateralized(marked to market daily) with cash or U.S. government securities until suchShares are deposited, (y) the applicant for such Receipts represents in writingthat it owns such Shares and will deliver them upon the Depositary’s request(no evidence of ownership is required or time of delivery specified) and (z)all such Receipts represent not more than 20% of Shares actuallydeposited.  Such collateral, but not theearnings thereon, shall be held for the benefit of the Holders. The Depositarymay retain for its own account any compensation for the issuance of Receiptsagainst such other rights to receive Shares, including without limitationearnings on the collateral securing such rights.  Without limitation of the foregoing, the Depositary shall notknowingly accept for deposit under this Deposit Agreement any Shares requiredto be registered pursuant to the provisions of the Securities Act of 1933,unless a registration statement under the Securities Act of 1933 is in effectas to such Shares.  The Depositary willuse reasonable efforts to comply with written instructions of the Company tonot accept for deposit hereunder any Shares identified in such instructions atsuch times and under such circumstances as may reasonably be specified in suchinstructions in order to facilitate the Company’s compliance with the securitieslaws in the United States.

 

SECTION 2.07.                                                      Substitutionof Receipts. In case any Receipt in certificated form shall be mutilated,destroyed, lost or stolen, the Depositary shall issue a new Receipt through theDirect Registration System or, as the Holder may specifically request, executeand deliver a new Receipt of like tenor, in either case in exchange andsubstitution for such mutilated Receipt upon cancellation thereof, or in lieuof and in substitution for such destroyed or lost or stolen Receipt, unless theDepositary has notice that such Receipt has been acquired by a bona fidepurchaser, upon the Holder thereof filing with the Depositary (a) a request forsuch execution and delivery and (b) a sufficient indemnity bond and satisfyingany other reasonable requirements imposed by the Depositary, including, withoutlimitation, evidence satisfactory to the Depositary of such destruction or lossor theft of such Receipt, the authenticity thereof and the Holder’s ownershipthereof.

 

SECTION 2.08.                                                      Cancellationand Destruction of Receipts. All Receipts surrendered to the Depositary shall be canceled by theDepositary.  The Depositary isauthorized to destroy Receipts in certificated form so canceled.  The Depositary agrees to maintain records ofall Receipts surrendered and Deposited Securities withdrawn underSection 2.05, substitute Receipts delivered under Section 2.07, andReceipts canceled or destroyed under this Section, in keeping with proceduresordinarily followed by stock transfer agents located in the Borough ofManhattan, the City of New York.

 

ARTICLE III

 

CertainObligations of Holders

 

SECTION 3.01.                                                      Information.  Any person presenting Shares for deposit orany Holder of a Receipt may be required from time to time to file with theDepositary or the Custodian such proof as to citizenship, residence, exchangecontrol

 

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approval,legal or beneficial ownership of Receipts, Deposited Securities or othersecurities, compliance with all applicable laws and regulations, all applicableprovisions of or governing Deposited Securities, and the terms of this DepositAgreement, or other information, and to execute and deliver to the Depositaryor the Custodian such certificates, including such representations andwarranties, as the Depositary may deem necessary or proper or as the Companymay require by written request to the Depositary or the Custodian.  The Depositary may withhold the delivery orregistration of transfer of any Receipt or any distribution on any DepositedSecurities represented by the American Depositary Shares evidenced by suchReceipt until the foregoing is accomplished to the Company’s and theDepositary’s satisfaction.

 

SECTION 3.02.                                                      Liabilityof Holder for Taxes.  If any tax or othergovernmental charge (including any interest and penalties thereon) shall becomepayable by or on behalf of the Custodian or the Depositary (or the nominee ofeither of them) with respect to any Receipt or any Deposited Securitiesrepresented by the American Depositary Shares evidenced by such Receipt, suchtax or other governmental charge shall be payable by the Holder of suchReceipt, who shall pay the amount thereof to the Depositary.  The Depositary may refuse to effect registrationof transfer of such Receipt or any split-up or combination thereof or anywithdrawal of such Deposited Securities until such payment is made, and maywithhold or deduct from any distributions on such Deposited Securities or maysell for the account of the Holder thereof any part or all of such DepositedSecurities (after attempting by reasonable means to notify such Holder prior tosuch sale), and may apply such cash or the proceeds of any such sale in paymentof such tax or other governmental charge, the Holder of such Receipt remainingliable for any deficiency.

 

SECTION 3.03.                                                      Warrantieson Deposit of Shares. Every person depositing Shares under this Deposit Agreement shall bedeemed thereby to represent and warrant that such Shares and each certificatetherefor are validly issued and outstanding, fully paid and nonassessable andfree of preemptive rights, that the person making such deposit is dulyauthorized so to do and that such Shares are not “restricted securities” underthe Securities Act of 1933.  Suchrepresentations and warranties shall survive the deposit of Shares and theexecution and delivery of Receipts therefor.

 

SECTION 3.04.                                                      Disclosureof Interests.  The Company may fromtime to time request Holders to provide information as to the capacity in whichsuch Holders own or owned Receipts and regarding the identity of any otherpersons then or previously interested in such Receipts and the nature of suchinterest and various other matters. Each Holder agrees to provide any information requested by the Companyor the Depositary pursuant to this Section. The Depositary agrees to use reasonable efforts to comply with writteninstructions received from the Company requesting that the Depositary forwardany such requests to the Holders and to forward to the Company any such responsesto such requests received by the Depositary. To the extent that provisions of any Venezuelan law or the Estatutos ofthe Company or the provisions of or governing any Deposited Securities mayprovide for blocking transfer and voting or other rights to enforce suchdisclosure or limit such ownership, the Depositary

 

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shalluse its reasonable efforts to comply with Company instructions as to Receiptsin respect of any such enforcement or limitation.

 

ARTICLE IV

 

Deposited Securities

 

SECTION 4.01.                                                      CashDistributions.  Whenever theDepositary or the Custodian shall receive any cash dividend or other cashdistribution upon any Deposited Securities, the Depositary shall, after anynecessary conversion of such distribution into U.S. dollars pursuant toSection 4.05 and after fixing a record date in respect thereof pursuant toSection 4.06, subject to this Deposit Agreement, distribute the amountthus received, by checks drawn on a bank in the United States, to the Holderson such record date of Receipts evidencing American Depositary Sharesrepresenting such Deposited Securities, in proportion to the number of AmericanDepositary Shares representing such Deposited Securities held by each of themrespectively; provided that the Depositary shall make appropriateadjustments in the amounts so distributed in respect of (a) any of suchDeposited Securities being not entitled, by reason of its date of issuance orotherwise, to receive all or any portion of such distribution or (b) anyamounts (i) required to be withheld by the Company, the Custodian or theDepositary from any such distribution on account of taxes, or (ii) charged bythe Depositary in connection with the conversion of foreign currency into U.S.dollars pursuant to Section 4.05. The Depositary shall distribute only such amount as can be distributedwithout distributing to any Holder a fraction of one cent, and any balance notso distributable shall be held by the Depositary (without liability for interestthereon) and shall be added to and become part of the next sum received by theDepositary for distribution to Holders of Receipts then outstanding.

 

SECTION 4.02.                                                      ShareDistributions.  If any distributionupon any Deposited Securities consists of a dividend in, or free distributionof, Shares, the Depositary may or shall, if the Company shall so request,subject to this Deposit Agreement, distribute to the Holders on a record datefixed pursuant to Section 4.06 of Receipts evidencing American DepositaryShares representing such Deposited Securities, in proportion to the number ofAmerican Depositary Shares representing such Deposited Securities held by eachof them respectively, additional Receipts for an aggregate number of AmericanDepositary Shares representing the number of Shares received as such dividendor free distribution.  In lieu ofdelivering Receipts for fractional American Depositary Shares in the case ofany such distribution, the Depositary shall sell at public or private sale, atsuch place or places and upon such terms as it may deem proper, the amount ofShares represented by the aggregate of such fractions and distribute the netproceeds of such sale as in the case of a distribution received in cashpursuant to Section 4.01.  If additionalReceipts are not so distributed, each American Depositary Share shallthenceforth also represent its proportionate interest in the additional Sharesso distributed upon such Deposited Securities.

 

SECTION 4.03.                                                      RightsDistributions.  If the Company shalloffer or cause to be offered to the holders of any Deposited Securities anyrights to subscribe for additional

 

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Shares or any rights of any nature,the Depositary shall have discretion as to the procedure to be followed inmaking such rights available to the Holders or in disposing of such rights anddistributing the net proceeds thereof as in the case of a distribution receivedin cash pursuant to Section 4.01; provided that the Depositaryshall, if requested by the Company, subject to this Deposit Agreement takeaction as follows:  (a)  if at the time of the offering of any suchrights the Depositary determines that it is lawful and feasible to make suchrights available to Holders by means of warrants or otherwise, the Depositaryshall distribute such warrants or other instruments therefor in such form as itmay determine to the Holders on a record date fixed pursuant toSection 4.06 of Receipts evidencing American Depositary Shares representingsuch Deposited Securities, in proportion to the number of American DepositaryShares representing such Deposited Securities held by each of themrespectively, or employ such other method as it may deem feasible in order tofacilitate the exercise, sale or transfer of rights by such Holders; or (b) ifat the time of any such offering of any such rights the Depositary determinesthat it is not lawful or not feasible to make such rights available to Holdersby means of warrants or otherwise, or if the rights represented by suchwarrants or such other instruments are not exercised and appear to be about tolapse, the Depositary in its discretion may sell such rights or such warrantsor other instruments at public or private sale, at such place or places andupon such terms as it may deem proper, and may allocate the proceeds of suchsales for account of the Holders otherwise entitled to such rights, warrants orother instruments, upon an averaged or other practicable basis without regardto any distinctions among such Holders because of exchange restrictions, or thedate of delivery of any Receipt or Receipts, or otherwise, and distribute thenet proceeds so allocated to the extent practicable as in the case of adistribution received in cash pursuant to Section 4.01.  The Depositary will not offer such rights toHolders having an address in the United States, unless the Company furnishes tothe Depositary (i) evidence that a registration statement under the SecuritiesAct of 1933 covering such offering is in effect or (ii) an opinion of counselfor the Company in the United States satisfactory to the Depositary to theeffect that such offering does not require registration under the SecuritiesAct of 1933.

 

SECTION 4.04.                                                      OtherDistributions.  Whenever theDepositary or the Custodian shall receive any distribution other than cash,Shares or rights upon any Deposited Securities, subject to this DepositAgreement, the Depositary shall cause securities or property to be distributedto the Holders on a record date fixed pursuant to Section 4.06 of Receiptsevidencing American Depositary Shares representing such Deposited Securities,in proportion to the number of American Depositary Shares representing suchDeposited Securities held by each of them respectively, in any manner that theDepositary may deem equitable and practicable for accomplishing suchdistribution; provided that if in the opinion of the Depositary suchdistribution cannot be made proportionately among the Holders entitled thereto,or if for any other reason (including any tax withholding or securities lawsrequirement) the Depositary deems such distribution not to be feasible, theDepositary may adopt such method as it may deem equitable and practicable forthe purpose of effecting such distribution, including the sale (at public orprivate sale) of the securities or property thus received, or any part thereof,and the distribution by the

 

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Depositary to the Holders of the netproceeds of any such sale as in the case of a distribution received in cashpursuant to Section 4.01.

 

SECTION 4.05.                                                      Conversionof Foreign Currency. Whenever the Depositary or the Custodian shall receive foreigncurrency, as a cash dividend or other distribution or as the net proceeds fromthe sale of securities, property or rights, which, in the judgment of theDepositary can then be converted on a reasonable basis into U.S. dollars whichcan then be transferred to the United States, the Depositary shall convert orcause to be converted, by sale or in any other manner that it may determine,such foreign currency into U.S. dollars and shall transfer the resulting U.S.dollars (net of its charges and expenses in effecting such conversion) to theUnited States.  Such U.S. dollars shallbe distributed to the Holders entitled thereto or, if the Depositary shall havedistributed any warrants or other instruments that entitle the holders thereofto such U.S. dollars, then to the holders of such warrants or instruments, asapplicable, upon surrender thereof for cancellation.  Such distribution may be made upon an averaged or otherpracticable basis without regard to any distinctions among Holders on accountof exchange restrictions or otherwise. If such conversion or distribution can be effected only with theapproval or license of any government or agency thereof, the Depositary shallfile such application for approval or license, if any, as it may deemdesirable.  If at any time theDepositary shall determine that in its judgment any foreign currency receivedby the Depositary is not convertible on a reasonable basis into U.S. dollarstransferable to the United States, or if any approval or license of anygovernmental authority or agency thereof that is required for such conversionis denied or in the opinion of the Depositary is not obtainable at a reasonablecost or within a reasonable period, the Depositary shall in its discretion, butsubject to applicable laws and regulations, either distribute the foreigncurrency (or an appropriate document evidencing the right to receive suchforeign currency) to, or hold such foreign currency (without liability forinterest thereon) for the respective accounts of, the Holders entitled toreceive the same.  If any suchconversion of foreign currency, in whole or in part, can be effected fordistribution to some but not all of the Holders entitled thereto, theDepositary may in its discretion make such conversion and distribution in U.S.dollars to the extent permissible to the Holders entitled thereto and may distributethe balance of the foreign currency received by the Depositary to, or hold suchbalance (without liability for interest thereon) for the respective accountsof, the Holders entitled thereto for whom such conversion and distribution isnot practicable.

 

SECTION 4.06.                                                      Fixing ofRecord Date.  Whenever anydistribution is being made upon any Deposited Securities or any meeting ofholders of Shares or other Deposited Securities is being held or whenever theDepositary shall find it necessary or convenient in connection with the givingof any notice, solicitation of any consent or any other matter, the Depositaryshall, after consultation with the Company, if practicable, fix a record datefor the determination of the Holders of Receipts evidencing the AmericanDepositary Shares representing such Deposited Securities who shall be entitledto receive such distribution or the net proceeds of the sale thereof, to giveinstructions for the exercise of voting rights at any such meeting, to receivesuch notice or solicitation or to act in

 

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respect of such other matter.  Subject to this Deposit Agreement, only suchHolders at the close of business on such record date shall be entitled toreceive any such distribution or proceeds, to give such voting instructions, toreceive such notice or solicitation or to act in respect of any such othermatter.

 

SECTION 4.07.                                                      Voting ofDeposited Securities. As soon as practicable after receipt of notice of any meeting or solicitationof consents or proxies of holders of Shares or other Deposited Securities, theDepositary shall mail to Holders a notice containing (a) such information as iscontained in such notice and in the solicitation materials, if any, (b) astatement that each Holder at the close of business on a specified record datewill be entitled, subject to any applicable provisions of Venezuela law and ofthe Estatutos of the Company and the provisions of or governing DepositedSecurities, to instruct the Depositary as to the exercise of the voting rights,if any, pertaining to the Deposited Securities represented by the AmericanDepositary Shares evidenced by such Holders’ Receipts, and (c) a statement asto the manner in which such instructions may be given, including an expressindication that instructions may be given (or be deemed given in accordancewith the last sentence of this Section if no instruction is received) tothe Depositary to give a discretionary proxy to a person designated by theCompany.  Upon the written request of aHolder on such record date, received on or before the date established by theDepositary for such purpose, the Depositary shall endeavor insofar aspracticable and permitted under any applicable provisions of Venezuelan law andof the Estatutos of the Company and the provisions of or governing DepositedSecurities to vote or cause to be voted (or to grant a discretionary proxy to aperson designated by the Company to vote) the Deposited Securities representedby the American Depositary Shares evidenced by such Holder’s Receipts inaccordance with any instructions set forth in such request.  The Depositary shall not itself exercise anyvoting discretion over any Deposited Securities.  If no instructions are received by the Depositary from any Holderwith respect to any of the Deposited Securities represented by the AmericanDepositary Shares evidenced by such Holder’s Receipts on or before the dateestablished by the Depositary for such purpose, to the extent permitted underapplicable law, the Depositary shall deem such Holder to have instructed theDepositary to give a discretionary proxy to a person designated by the Companywith respect to such Deposited Securities and the Depositary shall give adiscretionary proxy to a person designated by the Company to vote suchDeposited Securities, provided that no such instruction shall be deemedgiven and no such discretionary proxy shall be given with respect to any matteras to which the Company notifies the Depositary in writing at the time noticeof any meeting or solicitation of consents or proxies is received by theCustodian (and the Company agrees to provide such notification) that (x) theCompany does not wish such proxy given, (y) substantial opposition exists or(z) it materially affects the rights of holders of Shares.

 

SECTION 4.08.                                                      ChangesAffecting DepositedSecurities. Upon any change in par value, split-up,consolidation, cancellation or any other reclassification of DepositedSecurities, or upon any recapitalization, reorganization, merger orconsolidation or sale of assets affecting the Company or to which it is aparty, any securities that shall be received by the Depositary in exchange for,or in conversion, replacement, or

 

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otherwise in respect of, DepositedSecurities shall be treated as Deposited Securities under this DepositAgreement, and the Receipts shall thenceforth evidence American DepositaryShares representing the right to receive the Deposited Securities including thesecurities so received to the extent additional Receipts are not deliveredpursuant to the following sentence. In any such case the Depositary may withthe Company’s approval, and shall if the Company shall so request, subject tothis Deposit Agreement, execute and deliver additional Receipts as in the caseof a dividend of Shares, or call for the surrender of outstanding Receipts tobe exchanged for new Receipts specifically describing such newly receivedDeposited Securities.

 

SECTION 4.09.                                                      Withholding.  In connection with any distribution toHolders, the Company will remit to the appropriate governmental authority oragency in Venezuela all amounts (if any) required to be withheld by the Companyand owing to such authority or agency by the Company; and the Depositary andthe Custodian will remit to the appropriate governmental authority or agencyall amounts (if any) required to be withheld and owing to such authority oragency by the Depositary or the Custodian. The Depositary will forward to the Company such information from itsrecords as the Company may reasonably request to enable the Company to filenecessary reports with governmental authorities or agencies, and either theCompany or the Depositary may file any such reports necessary to obtainbenefits under any applicable tax treaties for Holders.  If the Depositary determines that anydistribution in property other than cash (including Shares or rights) onDeposited Securities is subject to any tax that the Depositary or the Custodianis obligated to withhold, the Depositary may dispose of all or a portion ofsuch property in such amounts and in such manner as the Depositary deemsnecessary and practicable to pay such taxes, by public or private sale, and theDepositary shall distribute the net proceeds of any such sale or the balance ofany such property after deduction of such taxes to the Holders entitled theretoas in the case of a distribution pursuant to Section 4.01, 4.02, 4.03 or4.04.

 

The Depositary shall use reasonable effortsto make and maintain arrangements enabling Holders who are citizens orresidents of the United States to receive any tax credits or other benefits(pursuant to treaty as otherwise) relating to dividend payments in respect ofthe American Depositary Shares.

 

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ARTICLE V

 

TheDepositary and the Company

 

SECTION 5.01.                                                      Maintenanceof Depositary’s Officeand Receipt Register; Certain Agents ofthe Depositary; Lists of Holders. (a)  Depositary’s Office.  The Depositary or its agent shall maintainat its transfer office in the Borough of Manhattan, The City of New York,facilities for the delivery and surrender of Shares, the execution anddelivery, registration, registration of transfer, combination and split-up of Receiptsand the withdrawal of Deposited Securities all in accordance with theprovisions of this Deposit Agreement.

 

(b)                                 The ReceiptRegister.  The Depositary or itsagent shall keep at its transfer office in the Borough of Manhattan, The Cityof New York, a Receipt register for the registration of Receipts and transfersof Receipts that at all reasonable times shall be open for inspection by theHolders and the Company; provided that such inspection shall not be for thepurpose of communicating with Holders in the interest of a business or objectother than the business of the Company or a matter related to this DepositAgreement or the Receipts.

 

(c)                                  ReceiptRegistrars and Co-Transfer Agents. If any Receipts or the American Depositary Shares evidenced thereby arelisted on one or more stock exchanges in the United States, the Depositary orits agent shall act as Receipt registrar or, upon the written request or withthe written approval of the Company, the Depositary shall appoint a Receiptregistrar or one or more co-registrars to register Receipts and transfers,combinations and split-ups of Receipts and to countersign Receipts inaccordance with any requirements of such exchange or exchanges and with theterms of any such appointment.  SuchReceipt registrar or co-registrars may be removed and a substitute orsubstitutes appointed by the Depositary upon the written request or with thewritten approval of the Company.  TheDepositary, upon the written request or with the written approval of theCompany, may appoint one or more co-transfer agents for the purpose ofeffecting transfers, combinations and split-ups of Receipts at designatedtransfer offices on behalf of the Depositary. Such co-transfer agents may be removed and substitutes appointed by theDepositary upon the written request or with the written approval of theCompany.  Each Receipt registrar,co-registrar or co-transfer agent appointed under this Section 5.01 (otherthan Morgan Guaranty Trust Company of New York) shall give notice in writing tothe Company and the Depositary accepting such appointment and agreeing to bebound by the applicable terms of this Deposit Agreement.

 

(d)                                 Lists ofHolders.  At the expense of theCompany, the Company shall have the right to inspect transfer and registrationrecords of the Depositary or its agent, take copies thereof and require theDepositary or its agent, the Receipt registrar and any co-transfer agents orco-registrars to supply copies of such portions of such records as the Companymay request.  The Depositary or itsagent shall furnish to the Company promptly upon the written request of theCompany, a list of the names, addresses and holdings of American Depositary

 

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Shares by all Holders as of a recentdate within seven days of the date of such request.

 

(e)                                  Depositary’sAgent.  The Depositary mayperform its obligations under this Section 5.01 through any agentappointed by it, provided that the Depositary shall notify the Company of suchappointment and shall remain responsible for the performance of suchobligations as if no agent were appointed.

 

SECTION 5.02.                                                      Preventionor Delay in Performance. Neither the Depositary, its agents northe Company shall incur any liability to any Holder or other person, if, byreason of any present or future law or regulation of the United States,Venezuela or any other country, or of any governmental or regulatory authorityor securities exchange, including without limitation the National Associationof Securities Dealers, Inc., the Bolsa de Valores de Maracaibo and the Bolsa deValores de Caracas, or by reason of the provisions of or governing anyDeposited Securities, act of God, war or other circumstances beyond itscontrol, the Depositary, its agents or the Company shall be prevented orforbidden from, or subjected to any civil or criminal penalty on account of, ordelayed in, doing or performing any act or thing which by the terms of thisDeposit Agreement it is provided shall be done or performed; nor shall the Depositary,its agents or the Company incur any liability to any Holder or other person byreason of any non-performance or delay, caused as aforesaid, in performance ofany act or thing that by the terms of this Deposit Agreement it is providedshall or may be done or performed, or by reason of any exercise of, or failureto exercise, any discretion provided for in this Deposit Agreement.

 

SECTION 5.03.                                                      ObligationsLimited.  The Company assumes noobligation and shall be subject to no liability under this Deposit Agreement orthe Receipts to Holders or other persons, except to perform such obligations asare specifically set forth and undertaken by it to perform in this DepositAgreement without gross negligence or bad faith.  Each of the Depositary and its agents assumes no obligation andshall be subject to no liability under this Deposit Agreement or the Receiptsto Holders or other persons, except to perform such obligations as arespecifically set forth and undertaken by it to perform in this Deposit Agreementwithout gross negligence or bad faith. Without limitation of the preceding sentence, none of the Depositary,its agents or the Company shall be (a) under any obligation to appear in,prosecute or defend any action, suit or other proceeding in respect of anyDeposited Securities or the Receipts that in its opinion may involve it inexpense or liability, unless indemnity satisfactory to it in its solediscretion against all expense and liability be furnished as often as may berequired, or (b) liable for any action or inaction by it in reliance upon theadvice of or information from legal counsel, accountants, any person presentingShares for deposit, any Holder, or any other person believed by it to becompetent to give such advice or information. The Depositary, its agents and the Company may rely and shall beprotected in acting upon any written notice, request, direction or otherdocument believed by it to be genuine and to have been signed or presented bythe proper party or parties.  TheDepositary and its agents shall not be responsible for any failure to carry outany instructions to vote any of the Deposited Securities, for the manner inwhich any such vote is cast or for the effect of any

 

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such vote, provided that any suchaction or nonaction is undertaken in good faith.  The Depositary and its agents may own and deal in any class ofsecurities of the Company and its affiliates and in Receipts.  No disclaimer of liability under theSecurities Act of 1933 is intended by any provision of this Deposit Agreement.

 

SECTION 5.04.                                                      Resignationand Removal of the Depositary; Appointment of Successor Depositary.  The Depositary may at any time resign asDepositary hereunder by written notice of its election so to do delivered tothe Company or be removed as Depositary by the Company by written notice ofsuch removal delivered to the Depositary, such resignation or removal to takeeffect upon the appointment of and acceptance by a successor depositary ashereinafter provided.  In case at anytime the Depositary acting hereunder shall resign or be removed, the Companyshall use its best efforts to appoint a successor depositary, which shall be abank or trust company having an office in the Borough of Manhattan, The City ofNew York.  Every successor depositaryshall execute and deliver to its predecessor and to the Company an instrumentin writing accepting its appointment hereunder, and thereupon such successordepositary, without any further act or deed, shall become fully vested with allthe rights, powers, duties and obligations of its predecessor; but suchpredecessor, nevertheless, upon payment of all sums due it and on the writtenrequest of the Company shall execute and deliver an instrument transferring tosuch successor all rights and powers of such predecessor hereunder, and suchpredecessor shall thereupon duly assign, transfer and deliver all right, titleand interest in the Deposited Securities to such successor, and shall deliverto such successor a list of the Holders. Any such successor depositary shall promptly mail notice of itsappointment to the Holders.  Anycorporation into or with which the Depositary may be merged or consolidatedshall be the successor of the Depositary without the execution or filing of anydocument or any further act.

 

SECTION 5.05.                                                      TheCustodian.  The Depositary, uponthe written request or with the written approval of the Company, may from timeto time appoint one or more agents, as permitted by Venezuelan law and anyother applicable laws or regulations, to act for it as Custodianhereunder.  Each Custodian so appointed(other than Morgan Guaranty Trust Company of New York) shall give notice inwriting to the Company and the Depositary accepting such appointment andagreeing to be bound by the applicable terms hereof.  Any Custodian in acting hereunder shall be subject at all timesand in all respects to the directions of the Depositary and shall beresponsible solely to it.  Any Custodianmay resign from its duties hereunder by notice of such resignation delivered tothe Depositary at least 30 days prior to the date on which such resignation isto become effective.  The Depositary maydischarge any Custodian at any time upon notice to the Custodian beingdischarged.  Any Custodian ceasing toact hereunder as Custodian shall deliver all Deposited Securities held by it toa Custodian continuing to act upon the instruction of the Depositary.  The Depositary shall give notice in writingto all Holders of the name and location of the appointment of any Custodian notnamed in the Receipts.  Upon theappointment of any successor depositary hereunder, any Custodian then actinghereunder shall forthwith become, without any further act or writing, the agenthereunder of such successor depositary and the appointment of such successordepositary shall in no way impair

 

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the authority of any Custodianhereunder; but the successor depositary so appointed shall, nevertheless, on thewritten request of any Custodian, execute and deliver to such Custodian allsuch instruments as may be proper to give to the Custodian full and completepower and authority as agent hereunder of such successor depositary.

 

SECTION 5.06.                                                      Notices andReports to Holders.  On or before the firstdate on which the Company gives notice, by publication or otherwise, of anymeeting of holders of Shares or other Deposited Securities, or of any adjournedmeeting of such holders, or of the taking of any action by such holders otherthan at a meeting, the Company shall transmit to the Custodian a copy of thenotice thereof in the form given or to be given to holders of Shares or otherDeposited Securities.  The Depositarywill, at the Company’s expense, arrange for the prompt transmittal by theCustodian to the Depositary of such notices and of any reports and othercommunications that are made generally available by the Company to holders ofits Shares or other Deposited Securities and arrange for the mailing, at the Company’sexpense, of copies thereof to all Holders or, at the request of the Company,make such notices, reports and other communications available to all Holders ona basis similar to that for holders of Shares or other Deposited Securities, oron such other basis as the Company may advise the Depositary may be required byany applicable law, regulation or stock exchange requirement.  The Company has delivered to the Depositaryand the Custodian a copy of the provisions of or governing the Shares and any otherDeposited Securities issued by the Company or any affiliate of the Company, andpromptly upon any amendment thereto or change therein, the Company shalldeliver to the Depositary and the Custodian a copy of such provisions as soamended or changed.  The Depositary mayrely upon such copy for all purposes of this Agreement.  The Depositary will make such copy and suchnotices, reports and other communications available for inspection by Holdersat the Depositary’s Office, at the office of the Custodian and at any otherdesignated transfer offices and shall be reimbursed by the Company for theactual cost of any expenses incurred.

 

SECTION 5.07.                                                      Issuance ofAdditional Shares, etc. Neither the Company nor any personcontrolling, controlled by or under common control with the Company shall issueadditional Shares, rights to subscribe for Shares, securities convertible intoor exchangeable for Shares, or rights to subscribe for any such securities orshall deposit any Shares under this Deposit Agreement, or shall purchase orsell any receipts, except under circumstances complying in all respects withthe Securities Act of 1933.  TheDepositary will use reasonable efforts to comply with written instructions ofthe Company not to accept for deposit hereunder any Shares identified in suchinstructions at such times and under such circumstances as may reasonably bespecified in such instructions in order to facilitate the Company’s compliancewith securities laws in the United States.

 

In the event of any issuance of additionalsecurities, the Company shall have no obligation to register such additionalsecurities under the Securities Act of 1933.

 

SECTION 5.08.                                                      Indemnification.  The Company shall indemnify, defend and saveharmless the Depositary, the Custodian, any Receipt registrar, co-transferagent, co-registrar

 

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or any other agent of the Company orthe Depositary appointed hereunder (the “indemnified persons”) against anyloss, liability or expense (including reasonable fees and expenses of counsel)that may arise (a) out of acts performed or omitted in connection with thisDeposit Agreement and the Receipts, as the same may be amended, modified orsupplemented from time to time, (i) by such indemnified person, except to theextent such loss, liability or expense is due to negligence or bad faith ofsuch indemnified person, or (ii) by the Company or any of its agents (otherthan the indemnified persons), or (b) out of or in connection with any offer orsale of Receipts, American Depositary Shares, Shares or other DepositedSecurities or any registration statement under the Securities Act of 1933 inrespect thereof, except to the extent such loss, liability or expense arisesout of information (or omissions from such information) relating to suchindemnified person, furnished in writing to the Company by such indemnifiedperson expressly for use in a registration statement under the Securities Actof 1933, prospectus or preliminary prospectus (or substantially equivalentdocument) relating to the Shares evidenced by the American DepositaryShares.  Each indemnified person shallindemnify, defend and save harmless the Company, its directors, employees,agents and affiliates against any loss, liability or expense incurred by theCompany in connection with this Deposit Agreement and the Receipts due to thenegligence or bad faith of such indemnified person.  The obligations set forth in this Section 5.08 shall survivethe termination of this Deposit Agreement and the succession or substitution ofany indemnified person.

 

SECTION 5.09.                                                      Charges ofDepositary.  The Company agrees topay all charges and out-of-pocket expenses of the Depositary and those of anyReceipt registrar, co-transfer agent and co-registrar and any other agent ofthe Depositary appointed under this Deposit Agreement (except those of theCustodian which are for the sole account of the Depositary, except as providedin Section 5.08) that are shown in Exhibit B hereto, which is herebyincorporated herein, to be payable by the Company, notwithstanding thetermination of this Deposit Agreement or the succession or substitution of anysuch person.  Any other charges andexpenses of the Depositary and its agents hereunder not otherwise provided forherein will be paid by the Company after consultation and agreement between theDepositary and the Company as to the amount and nature of such charges andexpenses.  Such charges may at any timeand from time to time be changed by agreement between the Company and theDepositary.  The Company shall not payor be liable for (1) the expenses of the Depositary for the execution anddelivery of Receipts pursuant to Section 2.03, transfers of Receiptspursuant to Section 2.04, the surrender of Receipts pursuant to Section 2.05,and the making of distributions pursuant to Section 4.01, (2) the itemsmentioned on Exhibit B hereto as not being payable by the Company and (3)overhead expenses and any other expenses (including, without limitation,salaries and benefits to employees) incident to the administration in theordinary course of this Deposit Agreement.

 

SECTION 5.10.                                                      StatutoryReports.  The Depositary shallmake available for inspection by Holders at the Depositary’s Office, at theoffice of the Custodian and at any other designated transfer offices anyreports and communications received from the Company which are both (a)received by the Depositary, the Custodian or the nominee of either as theholder

 

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of Deposited Securities and (b) madegenerally available to the holders of Deposited Securities by the Company.

 

SECTION 5.11.                                                      AvailableInformation to the Commission. The Company is subject to the periodicreporting requirements under the Securities Exchange Act of 1934 and agrees tofile all required reports with the Commission.

 

ARTICLE VI

 

Amendmentand Termination

 

SECTION 6.01.                                                      Amendment.  The Receipts and any provisions of thisDeposit Agreement may at any time and from time to time be amended by agreementbetween the Company and the Depositary in any respect.  Any amendment that shall impose or increaseany fees or charges (other than the fees and charges referred to in clauses (a)through (d) in Exhibit B hereto) or that shall otherwise prejudice anysubstantial existing right of Holders, shall not, however, become effective asto outstanding Receipts until the expiration of 30 days after notice of suchamendment shall have been given to the Holders.  Every Holder at the expiration of 30 days after such notice shallbe deemed by holding such Receipt to consent and agree to such amendment and tobe bound by the Deposit Agreement or the Receipts as amended thereby.  In no event shall any amendment impair theright of the Holder of any Receipt to surrender such Receipt and receivetherefor the Deposited Securities represented thereby, except in order tocomply with mandatory provisions of applicable law.

 

SECTION 6.02.                                                      Termination.  The Depositary shall at any time at thedirection of the Company terminate this Deposit Agreement by giving notice ofsuch termination to the Holders at least 30 days prior to the date fixed insuch notice for such termination.  TheDepositary may terminate this Deposit Agreement, upon the notice set forth inthe preceding sentence of this Section 6.02, at any time after 90 daysafter the Depositary shall have delivered to the Company its writtenresignation, provided that no successor depositary shall have beenappointed and accepted its appointment as provided in Section 5.04 beforethe end of such 90 days.  After the dateso fixed for termination, the Depositary and its agents shall perform nofurther acts under this Deposit Agreement, except to advise Holders of suchtermination, to receive and hold distributions on Deposited Securities (or sellproperty or rights or convert Deposited Securities into cash as provided inthis Deposit Agreement) and to deliver Deposited Securities in exchange forReceipts surrendered to the Depositary. As soon as practicable after the expiration of six months from the dateso fixed for termination, the Depositary shall sell the Deposited Securitiesand may thereafter (so long as it may lawfully do so) hold in a segregatedaccount the net proceeds of any such sale, together with any other cash thenheld by it hereunder, without liability for interest, in trust for the prorata benefit of the Holders of Receipts that have not theretofore beensurrendered.  After making such sale,the Depositary shall be discharged from all obligations in respect of theReceipts and this Deposit Agreement, except to account for such net proceedsand other cash.  After the date so fixedfor termination, the Company shall be discharged from all obligations underthis Deposit Agreement except for its obligations to the Depositary and itsagents under

 

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Sections 5.08 and 5.09.  The obligation of the Depositary underSection 5.08 shall survive the termination of this Deposit Agreement.

 

ARTICLE VII

 

Miscellaneous

 

SECTION 7.01.                                                      Counterparts.  This Deposit Agreement may be executed inany number of counterparts, each of which shall be deemed an original and allof such counterparts shall constitute one and the same instrument.  Copies of this Deposit Agreement shall befiled with the Depositary and the Custodian and shall be open to inspection byany Holder during business hours.

 

SECTION 7.02.                                                      No ThirdParty Beneficiaries.  This Deposit Agreementis for the exclusive benefit of the Company, the Depositary, their agents, and,to the extent contemplated hereby, the Holders, and their respective successorshereunder, and shall not give any legal or equitable right, remedy or claimwhatsoever to any other person.

 

SECTION 7.03.                                                      Severability.  In case any one or more of the provisionscontained in this Deposit Agreement or in the Receipts should be or becomeinvalid, illegal or unenforceable in any respect, the validity, legality andenforceability of the remaining provisions contained herein or therein shall inno way be affected, prejudiced or disturbed thereby.

 

SECTION 7.04.                                                      HoldersParties; Binding Effect. The Holders and owners of Receipts from time to time shall be parties tothis Deposit Agreement and shall be bound by all of the terms and conditionshereof and of the Receipts by acceptance thereof.

 

SECTION 7.05.                                                      Notices. (a) Tothe Company.  Any and all notices tobe given to the Company shall be duly given if personally delivered or sent bymail, first class airmail postage prepaid, or by cable, telex or facsimiletransmission in each case confirmed by letter, addressed to CORIMON, C.A., P.O.Box 3654, Calle Hans Neumann, Edif. Corimon, Los Cortijos de Loures, Caracas1010-A, Venezuela, Attention: Finance Director or any other address which theCompany may specify in writing to the Depositary.

 

(b)                                 To theDepositary.  Any and all notices tobe given to the Depositary shall be duly given if personally delivered or sentby mail, first class airmail postage prepaid, or by cable, telex or facsimiletransmission in each case confirmed by letter, addressed to Morgan GuarantyTrust Company of New York, 60 Wall Street, New York, New York 10260, Attention:ADR Administration, which is the location of the Depositary’s Office on thedate of this Deposit Agreement, or any other address which the Depositary mayspecify in writing to the Company.

 

(c)                                  To theHolders.  Any and all notices tobe given to any Holder shall be duly given if personally delivered or sent bymail, first class airmail postage prepaid, or by cable, telex or facsimiletransmission in each case confirmed by letter, addressed to such Holder at theaddress of such Holder as it

 

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appears on the transfer books forReceipts of the Depositary, or, if such Holder shall have filed with theDepositary a written request that notices intended for such Holder be mailed tosome other address, at the address designated in such request.

 

(d)                                 General.  Notice given as aforesaid, (i) to theCompany or the Depositary, shall be deemed to be effected when received, and(ii) to a Holder by mail or by cable, telex or facsimile transmission, shall bedeemed to be effected at the time when a duly addressed letter containing thesame (or a confirmation thereof in the case of a cable, telex or facsimile transmission)is deposited, first class airmail postage prepaid, in a post-office letterbox.  The Depositary or the Company mayact upon any cable, telex or facsimile transmission received by it from theother or from any Holder, notwithstanding that such cable, telex or facsimiletransmission shall not subsequently be confirmed as aforesaid.

 

SECTION 7.06.                                                      GoverningLaw.  This Deposit Agreement and the Receiptsshall be interpreted and all rights hereunder and thereunder and provisionshereof and thereof shall be governed by the laws of the State of New Yorkwithout regard to the principles of conflicts thereof.

 

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IN WITNESS WHEREOF, CORIMON, C.A. andMORGAN GUARANTY TRUST COMPANY OF NEW YORK have duly executed this DepositAgreement as of the day and year first above set forth and all holders ofReceipts shall become parties hereto upon acceptance by them of Receipts issuedin accordance with the terms hereof.

 

 
|   | CORIMON,  C.A.                             |
|--------|--------------------------------------------|
|   |                                       |
|   |                                       |
|   | By                                         |   |
|   |                                       | Title: |
|   |                                       |
|   |                                       |
|   | MORGAN GUARANTY TRUST COMPANY  OF NEW YORK |
|   |                                       |
|   |                                       |
|   | By                                         |   |
|   |                                       | Title: |

 

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EXHIBIT ATODEPOSIT AGREEMENT

 

[FORM OF FACE OF RECEIPT]

 
|   | No. of  American  Depositary Shares                                                                                                                                                                                                                                                              |
|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                             |
|   |                                                  |
|   | Each  representing  5,000 Shares                                                                                                                                                                                                                                                                 |

 

 

AMERICANDEPOSITARY RECEIPT

 

evidencing

 

AMERICANDEPOSITARY SHARES

 

representing

 

fully paidCommon Shares

 

of

 

CORIMON, C.A.

 

(Incorporatedunder thelaws of Venezuela)

 

No.                                     

 

MORGAN GUARANTY TRUSTCOMPANY OF NEW YORK, incorporated under the laws of the State of New York, asdepositary (the “Depositary”), hereby certifies that                     is the owner of            American Depositary Shares, representingdeposited fully paid Common Shares, nominal value Bs. 10.00 per share,including rights to receive such fully paid Common Shares (“Shares”), ofCorimon, C.A., a corporation organized under the laws of Venezuela (the“Company”). At the date hereof, each American Depositary Share represents 5000Shares deposited under the Deposit Agreement (hereinafter defined) at theCaracas office of Banco Venezolano de Credito, S.A., as Custodian (the“Custodian”). Capitalized terms used herein that are not defined herein shall havethe meanings assigned to them in the Deposit Agreement.

 

(1)                                   TheDeposit Agreement. This American Depositary Receipt is one of the receipts (the“Receipts”) executed and delivered pursuant to the Amended and Restated DepositAgreement dated as of July 6, 2000 to the Deposit Agreement dated as ofNovember 14, 1991, amended and restated as of March 15, 1993 asthereafter amended (as amended from time to time, the “Deposit Agreement”) byand among the Company, the Depositary and all

 

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registered holders (“Holders”) from time to time of Receipts, each ofwhom by accepting a Receipt becomes a party thereto, bound by all applicableterms and provisions thereof and hereof. The Deposit Agreement sets forth therights of Holders and the rights and duties of the Depositary in respect of theShares deposited thereunder and any and all other securities, property and cashfrom time to time received in respect of such Shares and held thereunder (suchShares, securities, property and cash, collectively, the “DepositedSecurities”). Copies of the Deposit Agreement and of the Company’s provisionsof or governing Deposited Securities are on file at the Depositary’s Office,the office of the Custodian and at any other designated transfer office. Thestatements made on the face and the reverse of this Receipt are summaries ofcertain provisions of the Deposit Agreement and are qualified by and subject tothe detailed provisions thereof. The Depositary makes no representation orwarranty as to the validity or worth of the Deposited Securities.

 

(2)                                   Withdrawal of Deposited Securities. Upon surrender of thisReceipt and payment of the fee of the Depositary provided for in paragraph (8)of this Receipt at the Depositary’s Office or at such other offices as it maydesignate, subject to the Deposit Agreement and the provisions of or governingthe Deposited Securities, the Holder hereof is entitled to the delivery withoutunreasonable delay at the principal executive office of the Custodian inCaracas, Venezuela, to such Holder or upon such Holder’s order of the DepositedSecurities at the time represented by the American Depositary Shares evidencedby this Receipt. At the request, risk and expense of the Holder hereof, theDepositary may deliver such Deposited Securities at the Depositary’s Office orat such other place as may have been requested by the Holder. Delivery ofDeposited Securities may be made by the delivery of certificates to the extentsuch Deposited Securities may be represented by certificates. Neither theDepositary nor the Custodian shall deliver Deposited Securities to any personexcept pursuant to this paragraph (2) or paragraphs (12), (15), (17), (19),(20) or (21). Notwithstanding any other provision of the Deposit Agreement orthis Receipt, the Depositary may restrict the withdrawal of DepositedSecurities only for the reasons set forth in General Instruction I.A.(1) ofForm F-6 (as such instructions may be amended from time to time) under theSecurities Act of 1933.

 

(3)                                   Transfers, Split-ups and Combinations. Subject to paragraph (4), this Receipt istransferable on the Receipt register maintained by the Depositary by the Holderhereof in person or by duly authorized attorney, upon surrender of this Receiptat any designated transfer office properly endorsed or accompanied by properinstruments of transfer and duly stamped as may be required by applicable law; providedthat the Depositary may close the Receipt register at any time or from time totime when deemed expedient by it in connection with the performance of itsduties under the Deposit Agreement or at the request of the Company. ThisReceipt may be split into other Receipts or may be combined with other Receiptsinto one Receipt, evidencing the same aggregate number of American DepositaryShares as those evidenced by the Receipt or Receipts surrendered.

 

(4)                                   Certain Limitations. Prior to the executionand delivery, registration, registration of transfer, split-up or combinationof any Receipt, the delivery of any distribution in respect thereof, or,subject to the last sentence of paragraph

 

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(2), the withdrawal of any Deposited Securities, the Depositary, theCompany or the Custodian may require: (a) payment of (i) any stock transfer orother tax or other governmental charge with respect thereto, (ii) any stocktransfer or registration fees in effect for the registration of transfers ofShares or other Deposited Securities upon any applicable register and (iii) anyapplicable charges as provided in paragraph (8) of this Receipt; (b) theproduction of proof satisfactory to it of the identity and genuineness of anysignature and of such other information (including without limitationinformation as to citizenship, residence, exchange control approval, or legalor beneficial ownership of any securities) as it may deem necessary or properor as the Company may require; and (c) compliance with such regulations, ifany, as the Depositary and the Company may establish consistent with theDeposit Agreement. The delivery of Receipts against deposits of Shares may besuspended, deposits of Shares may be refused, or the registration of transferof Receipts, their split-up or combination or, subject to the last sentence ofparagraph (2), the withdrawal of Deposited Securities may be suspended,generally or in particular instances, when the Receipt register or any registerfor Shares or other Deposited Securities is closed or when any such action isdeemed necessary or advisable by the Depositary or the Company. The Depositarymay issue Receipts against rights to receive Shares from the Company, or anyregistrar, transfer agent, clearing agency or other entity recording Shareownership or transactions. The Depositary will not issue Receipts against otherrights to receive Shares unless (x) such Receipts are fully collateralized(marked to market daily) with cash or U.S. government securities until suchShares are deposited, (y) the applicant for such Receipts represents in writingthat it owns such Shares and will deliver them upon the Depositary’s request(no evidence of ownership is required or time of delivery specified) and (z)all such Receipts represent not more than 20% of Shares actually deposited.Such collateral, but not the earnings thereon, will be held for the benefit ofthe Holders. The Depositary may retain for its own account any compensation forthe issuance of Receipts against such other rights to receive Shares, includingwithout limitation earnings on the collateral securing such rights. TheDepositary will execute and deliver Receipts only in accordance withSection 2.03 of the Deposit Agreement and paragraphs (3), (4), (12) and(15). The Depositary will not knowingly accept for deposit under the DepositAgreement any Shares required to be registered under the Securities Act of 1933and not so registered; the Depositary may refuse to accept for such deposit anyShares identified by the Company in order to facilitate the Company’scompliance with securities laws in the United States.

 

(5)                                   Liability of Holder for Taxes. If any tax or other governmental charge, includinginterest and penalties thereon, shall become payable by or on behalf of theCustodian or the Depositary with respect to this Receipt or any DepositedSecurities represented by the American Depositary Shares evidenced by thisReceipt, such tax or other governmental charge shall be payable by the Holderhereof, who shall pay the amount thereof to the Depositary. The Depositary mayrefuse to effect any registration of transfer of this Receipt or any split-upor combination hereof or any withdrawal of such Deposited Securities until suchpayment is made, and may withhold or deduct from any distributions on suchDeposited Securities, or may sell for the account of the Holder hereof any partor all of such Deposited

 

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Securities (after attempting by reasonable means to notify the Holderhereof prior to such sale), and may apply such cash or the proceeds of any suchsale in payment of such tax or other governmental charge, the Holder hereofremaining liable for any deficiency.

 

(6)                                   Warranties by Depositor. Every person depositingShares under the Deposit Agreement shall be deemed thereby to represent andwarrant that such Shares and each certificate therefor are validly issued andoutstanding, fully paid, nonassessable and free of preemptive rights, that theperson making such deposit is duly authorized so to do and that such Shares arenot “restricted securities” under the Securities Act of 1933. Suchrepresentations and warranties shall survive the deposit of Shares and issuanceof Receipts.

 

(7)                                   Disclosure of Interests. The Company may from time to time request Holdersto provide information as to the capacity in which such Holders own or ownedReceipts and regarding the identity of any other persons then or previouslyinterested in such Receipts and the nature of such interest and various othermatters. Each Holder agrees to provide any information requested by the Companyor the Depositary pursuant to this Section. The Depositary agrees to usereasonable efforts to comply with written instructions received from theCompany requesting that the Depositary forward any such requests to the Holdersand to forward to the Company any such responses to such requests received bythe Depositary. To the extent that provisions of any Venezuelan law or theEstatutos of the Company or the provisions of or governing any DepositedSecurities may provide for blocking transfer and voting or other rights toenforce such disclosure or limit such ownership, the Depositary has agreed touse its reasonable efforts to comply with Company instructions as to Receiptsin respect of any such enforcement or limitation.

 

(8)                                   Charges of Depositary. The Depositary willcharge each person to whom Receipts are delivered against deposits of Shares,and each person surrendering Receipts for withdrawal of Deposited Securities,U.S. $5.00 for each 100 American Depositary Shares (or portion thereof)evidenced by the Receipts delivered or surrendered. The Company will pay allother charges and expenses of the Depositary and those of any Receiptregistrar, co-transfer agent and co-registrar and any other agent of theDepositary (except the Custodian), except (i) stock transfer or other taxes andother governmental charges (which are payable by Holders or persons depositingShares), (ii) cable, telex, facsimile transmission and delivery chargesincurred at the request of persons depositing Shares or Holders deliveringShares, Receipts or Deposited Securities (which are payable by such persons orHolders), (iii) transfer or registration fees for the registration of transfersof deposited Shares and other Deposited Securities on any applicable registerin the name of the Custodian or its nominee in connection with the deposit ofShares or in the name of such person as a Holder may direct in connection withany withdrawal of Deposited Securities (which are payable by persons depositingShares or Holders withdrawing Deposited Securities; there are no such feespayable by such persons or Holders in respect of the Shares as of the date ofthe Deposit Agreement), and (iv) expenses of the Depositary in connection withthe conversion of foreign currency into U.S. dollars (which are paid out ofsuch foreign currency). The

 

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provisions in respect of these charges may bechanged in the manner indicated in paragraph (20).

 

(9)                                   Title to Receipts. Title to this Receipt(and to the Deposited Securities represented by the American Depositary Sharesevidenced hereby), when properly endorsed or accompanied by proper instrumentsof transfer, is transferable by delivery with the same effect as in the case ofa negotiable instrument; provided that the Depositary, notwithstandingany notice to the contrary, may treat the person in whose name this Receipt isregistered on the register maintained by the Depositary as the absolute ownerhereof for the purpose of determining the person entitled to any distributionor notice and for all other purposes.

 

(10)                             Validityof Receipt. This Receipt shall not be entitled to any benefits under the DepositAgreement or be valid or obligatory for any purpose unless executed by theDepositary by the manual or facsimile signature of a duly authorized officer ofthe Depositary.

 

(11)                             Available Information. The Company issubject to the periodic reporting requirements under the Securities ExchangeAct of 1934 and accordingly files certain reports with the Securities andExchange Commission. Such reports and other information may be inspected andcopied at the public reference facilities maintained by the Commission locatedat the date of the Deposit Agreement at Judiciary Plaza, 450 Fifth Street,N.W., Washington, D.C. 20549.

 

Dated:

 
|   | MORGAN GUARANTY TRUST COMPANY  OF NEW YORK, as Depositary |
|--------|-----------------------------------------------------------|
|   |                                                      |
|   |                                                      |
|   | By                                                        |   |   |
|   |                                                      | Authorized  Officer |   |

 

The address of the Depositary’s Officeis 60 Wall Street, New York, New York 10260.

 

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[FORM OF REVERSE OF RECEIPT]

 

SUMMARY OF CERTAINADDITIONAL PROVISIONSOF THE DEPOSIT AGREEMENT

 

(12)                             Distributions Upon Deposited Securities. Whenever the Depositaryor the Custodian shall receive any cash dividend or other cash distributionupon any Deposited Securities, the Depositary shall, subject to the DepositAgreement, distribute the amount thus received, by checks drawn on a bank inthe United States, to the Holders on the record date set by the Depositarytherefor of Receipts evidencing American Depositary Shares representing suchDeposited Securities, in proportion to the number of American Depositary Sharesrepresenting such Deposited Securities held by each of them respectively; providedthat the Depositary shall make appropriate adjustments in the amounts sodistributed in respect of (a) any of the Deposited Securities being notentitled, by reason of its date of issuance or otherwise, to receive all or anyportion of such distribution or (b) any amounts (i) required to be withheld bythe Company, the Custodian or the Depositary on account of taxes or (ii)charged by the Depositary in connection with the conversion of foreign currencyinto U.S. dollars. Cash distributions and cash proceeds from sales of non-cashdistributions in foreign currency will be converted by sale or such othermanner as the Depositary may determine into U.S. dollars (net of theDepositary’s charges and expenses in effecting such conversion) beforedistribution to Holders. If in the judgment of the Depositary amounts receivedin foreign currency may not be converted on a reasonable basis into U.S.dollars transferable to the United States, or may not be so convertible for allof the Holders entitled thereto, the Depositary may in its discretion make suchconversion and distribution in U.S. dollars to the extent reasonable andpermissible to the Holders entitled thereto and may distribute the balance inforeign currency to the Holders entitled thereto or hold such balance or allsuch foreign currency for the Holders entitled thereto (without liability for interestthereon). If any distribution upon any Deposited Securities consists of adividend in, or free distribution of, Shares, the Depositary may or shall, ifthe Company shall so request, subject to the Deposit Agreement, distribute tothe Holders on a record date set by the Depositary therefor of Receiptsevidencing American Depositary Shares representing such Deposited Securities,in proportion to the number of American Depositary Shares representing suchDeposited Securities held by each of them respectively, additional Receipts foran aggregate number of Depositary Shares representing the number of Sharesreceived as such dividend or free distribution. In lieu of delivering Receiptsfor fractional American Depositary Shares in the case of any such distribution,the Depositary shall sell at public or private sale, at such place or placesand upon such terms as it may deem proper, the number of Shares represented bythe aggregate of such fractions and distribute the net proceeds to the Holdersentitled thereto as in the case of a distribution received in cash. Ifadditional Receipts are not so distributed, each American Depositary Shareshall thenceforth also represent its proportionate interest in the additionalShares so distributed upon such Deposited Securities. If the Company shalloffer or cause to be offered to the holders of any Deposited Securities anyrights to subscribe for additional Shares or any rights of any nature, theDepositary

 

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shall have discretion as to whether and howsuch rights are to be made available to the Holders; provided that theDepositary will, if requested by the Company, either (y) make such rightsavailable to Holders by means of warrants or otherwise, if lawful and feasible,or (z) if making such rights available is not lawful or not feasible, or ifsuch rights or warrants are not exercised and appear to be about to lapse, sellsuch rights or warrants at public or private sale, at such place or places andupon such terms as the Depositary may deem proper, and allocate the proceeds ofsuch sales for account of the Holders otherwise entitled thereto upon anaveraged or other practicable basis without regard to any distinctions amongsuch Holders because of exchange restrictions, or the date of delivery of anyReceipt or Receipts, or otherwise, and distribute the net proceeds so allocatedto the Holders entitled thereto as in the case of a distribution received incash. The Depositary will distribute to Holders on the record date set by ittherefor any distribution on Deposited Securities other than cash, Shares orrights in any manner that the Depositary deems equitable and practicable;provided if in the opinion of the Depositary any distribution other than cash,Shares or rights upon any Deposited Securities cannot be made proportionatelyamong the Holders entitled thereto, or if for any other reason the Depositarydeems such distribution not to be feasible, the Depositary may adopt suchmethod as it may deem equitable for the purpose of effecting such distribution,including the sale (at public or private sale) of the securities or propertythus received, or any part thereof, and the net proceeds of any such sale willbe distributed by the Depositary to the Holders entitled thereto as in the caseof a distribution received in cash. The Depositary need not distributesecurities, Receipts or rights unless the Company furnishes certain evidence oropinions in respect of United States securities laws (which the Company has no obligationto do).

 

(13)                             RecordDates. Whenever anydistribution is being made upon any Deposited Securities or any meeting ofholders of Shares or other Deposited Securities is being held or whenever theDepositary shall find it necessary or convenient in connection with the givingof any notice, solicitation of any consent or any other matter, the Depositarywill, after consultation with the Company, if practicable, fix a record datefor the determination of the Holders who shall be entitled to receive suchdistribution or the net proceeds of the sale thereof, to give instructions forthe exercise of voting rights at any such meeting, to receive such notice orsolicitation or act in respect of such other matter, subject to the provisionsof the Deposit Agreement.

 

(14)                             Votingof Deposited Securities. As soon as practicable after receipt of notice of anymeeting or solicitation of consents or proxies of holders of Shares or otherDeposited Securities, the Depositary shall mail to Holders a notice containing(a) such information as is contained in such notice and in the solicitationmaterials, if any, (b) a statement that each Holder at the close of business ona specified record date will be entitled, subject to any applicable provisionsof Venezuelan law and the Estatutos of the Company and the provisions of orgoverning Deposited Securities, to instruct the Depositary as to the exerciseof the voting rights, if any, pertaining to the Deposited Securitiesrepresented by the American Depositary Shares evidenced by such Holders’Receipts and (c) a statement as to the manner in which such instructions

 

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may be given, including an express indicationthat instructions may be given (or be deemed given in accordance with the lastsentence of this paragraph if no instruction is received) to the Depositary togive a discretionary proxy to a person designated by the Company. Upon thewritten request of a Holder on such record date, received on or before the dateestablished by the Depositary for such purpose, the Depositary shall endeavorinsofar as practicable and permitted under any applicable provisions ofVenezuelan law and the Estatutos of the Company and the provisions of orgoverning Deposited Securities to vote or cause to be voted (or to grant adiscretionary proxy to a person designated by the Company to vote) theDeposited Securities represented by the American Depositary Shares evidenced bysuch Holder’s Receipts in accordance with any instructions set forth in suchrequest. The Depositary will not itself exercise any voting discretion over anyDeposited Securities. If no instructions are received by the Depositary fromany Holder with respect to any of the Deposited Securities represented by theAmerican Depositary Shares evidenced by such Holder’s Receipts on or before thedate established by the Depositary for such purpose, to the extent permittedunder applicable law, the Depositary will deem such Holder to have instructedthe Depositary to give a discretionary proxy to a person designated by theCompany with respect to such Deposited Securities and the Depositary will givea discretionary proxy to a person designated by the Company to vote suchDeposited Securities, provided that no such no such discretionary proxyshall be given with respect to any matter as to which the Company notifies theDepositary in writing at the time notice of any meeting or solicitation ofconsents or proxies is received by the Custodian (and the Company agrees toprovide such notification that (x) the Company does not wish such proxy given,(y) substantial opposition exists or (z) it materially affects the rights ofholders of Shares.

 

(15)                             Changes Affecting Deposited Securities. Upon any change in parvalue, split-up, consolidation, cancellation or any other reclassification ofDeposited Securities, or upon any recapitalization, reorganization, merger orconsolidation or sale of assets affecting the Company or to which it is aparty, any securities that shall be received by the Depositary in exchange for,or in conversion, replacement or otherwise in respect of, Deposited Securitiesshall be treated as Deposited Securities under the Deposit Agreement; and, theDepositary may with the Company’s approval, and shall if the Company shall sorequest, execute and deliver additional Receipts in respect of such securitiesas in the case of a dividend of Shares or call for the surrender of outstandingReceipts to be exchanged for new Receipts, reflecting such securities, and tothe extent that such additional or new Receipts are not delivered this Receiptshall thenceforth evidence American Depositary Shares representing the right toreceive the Deposited Securities including the securities so received.

 

(16)                             Reports;Inspectionof Register. The Depositary will make available for inspection by Holders at theDepositary’s Office, at the office of the Custodian and at any other designatedtransfer offices (and shall be reimbursed by the Company for the actual cost ofany expenses incurred) any reports and communications received from the Companywhich are both (a) received by the Depositary, the Custodian or the nominee ofeither as the holder of the Deposited Securities and (b) made generallyavailable to the holders of Deposited Securities by the

 

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Company. The Depositary will also mail ormake available to Holders copies of such reports when furnished by the Companyas provided in the Deposit Agreement. The Depositary will keep, at its transferoffice in the Borough of Manhattan, The City of New York, a register for theregistration of Receipts and their transfer that at all reasonable times willbe open for inspection by the Holders and the Company; provided thatsuch inspection shall not be for the purpose of communicating with Holders inthe interest of a business or object other than the business of the Company ora matter related to the Deposit Agreement, or the Receipts.

 

(17)                             Withholding. In connection with anydistribution to Holders, the Company will remit to the appropriate governmentalauthority or agency in Venezuela all amounts (if any) required to be withheldby the Company and owing to such authority or agency by the Company; and theDepositary and the Custodian will remit to the appropriate governmentalauthority or agency all amounts (if any) required to be withheld by the Companyand owing to such authority or agency by the Depositary or the Custodian. Ifthe Depositary determines that any distribution in property other than cash (includingShares or rights) on Deposited Securities is subject to any tax that theDepositary or the Custodian is obligated to withhold, the Depositary maydispose of all or a portion of such property in such amounts and in such manneras the Depositary deems necessary and practicable to pay such taxes, by publicor private sale, and the Depositary shall distribute the net proceeds of anysuch sale or the balance of any such property after deduction of such taxes tothe Holders entitled thereto. The Depositary shall use reasonable efforts tomake and maintain arrangements enabling Holders who are citizens or residentsof the United States to receive any tax credits or other benefits (pursuant totreaty as otherwise) relating to dividend payments in respect of the AmericanDepositary Shares.

 

(18)                             Liability of the Company and the Depositary. Neither the Depositary,its agents nor the Company shall incur any liability to any Holder or otherperson, if, by reason of any present or future law or regulation of the UnitedStates, Venezuela or any other country, or of any governmental or regulatoryauthority or securities exchange, including without limitation the NationalAssociation of Securities Dealers, Inc., the Bolsa de Valores de Maracaibo andthe Bolsa de Valores de Caracas, or by reason of the provisions of or governingany Deposited Security, act of God, war or other circumstance beyond itscontrol, the Depositary, its agents or the Company shall be prevented orforbidden from, or subjected to any civil or criminal penalty on account of, ordelayed in, doing or performing any act or thing which by the terms of theDeposit Agreement it is provided shall be done or performed. Each of theCompany, the Depositary and its agents assumes no obligation and shall be subjectto no liability under the Deposit Agreement or this Receipt to Holders or otherpersons, except to perform such obligations as are specifically set forth andundertaken by it to perform in the Deposit Agreement without gross negligenceor bad faith. Neither the Depositary, its agents nor the Company will be (a)under any obligation to appear in, prosecute or defend any action, suit orother proceeding in respect of any Deposited Securities or this Receipt that inits opinion may involve it in expense or liability, unless indemnitysatisfactory to it against all expense and liability be furnished as often asmay be

 

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required or (b) liable for any action orinaction by it in reliance upon the advice of or information from legalcounsel, accountants, any person presenting Shares for deposit, any Holder, orany other person believed by it to be competent to give such advice orinformation. The Depositary, its agents and the Company may rely and shall beprotected in acting upon any written notice, request, direction or otherdocument believed by them to be genuine and to have been signed or presented bythe proper party or parties. The Depositary and its agents will not beresponsible for any failure to carry out any instructions to vote any of theDeposited Securities, for the manner in which any such vote is cast or for theeffect of any such vote, provided that any such action or nonaction isundertaken in good faith. The Depositary and its agents may own and deal in anyclass of securities of the Company and its affiliates and in Receipts. TheCompany has agreed to indemnify the Depositary, the Custodian, any Receiptregistrar, co-transfer agent, co-registrar or other agent of the Depositaryappointed under the Deposit Agreement (the “indemnified persons”) against anyloss, liability or expense (including reasonable fees and expenses of counsel)that may arise (a) out of acts performed or omitted in connection with theDeposit Agreement and the Receipts, (i) by any indemnified person, except tothe extent that any such loss, liability or expense is due to the negligence orbad faith of such indemnified person, or (ii) by the Company or any of itsagents or (b) out of or in connection with any offer or sale of Receipts,American Depositary Shares, Shares or any other Deposited Securities or anyregistration statement under the Securities Act of 1933 in respect thereof,except to the extent such loss, liability or expense arises out of information(or omissions from such information) relating to such indemnified person,furnished in writing to the Company by such indemnified person expressly foruse in a registration statement under the Securities Act of 1933, prospectus orpreliminary prospectus (or substantially equivalent document) relating to theShares evidenced by the American Depositary Shares. Each indemnified personshall indemnify, defend and save harmless the Company, its directors,employees, agents and affiliates against any loss, liability or expenseincurred by the Company in connection with the Deposit Agreement and theReceipts due to the negligence or bad faith of such indemnified person.

 

(19)                             Resignation and Removal of Depositary; the Custodian. The Depositary may atany time resign as Depositary under the Deposit Agreement by written notice ofits election so to do delivered to the Company or be removed by the Company bywritten notice of such removal delivered to the Depositary, such resignation orremoval to take effect upon the appointment of and acceptance by a successordepositary as provided in the Deposit Agreement. The Depositary may, uponwritten request or written approval of the Company, at any time appointsubstitute or additional Custodians and the term “Custodian” refers to eachCustodian or all Custodians as the context requires.

 

(20)                             Amendment of Deposit Agreement and Receipts. The Receipts and theDeposit Agreement may be amended by agreement between the Company and theDepositary. Any amendment that shall impose or increase any fees or charges(other than the fees and charges listed in clauses (i) through (iv) ofparagraph (8)) or that shall otherwise prejudice any substantial existing rightof Holders, shall not, however, become effective as to outstanding Receiptsuntil the expiration of 30 days after notice of such

 

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amendment shall have been given to theHolders. Every Holder at the expiration of such 30 days shall be deemed byholding such Receipt to consent and agree to such amendment and to be bound bythe Deposit Agreement or the Receipt as amended thereby. In no event shall anyamendment impair the right of the Holder hereof to surrender this Receipt andreceive therefor the Deposited Securities represented hereby, except in orderto comply with mandatory provisions of applicable law.

 

(21)                             Termination of Deposit Agreement.The Depositary will at any time at the direction of the Company terminate theDeposit Agreement by mailing notice of such termination to the Holders at least30 days prior to the date fixed in such notice for such termination. TheDepositary may terminate the Deposit Agreement, upon the notice set forth inthe preceding sentence, at any time after 90 days after the Depositary shallhave resigned, provided that no successor depositary shall within such90 days have been appointed and accepted its appointment within such 90 days.After the date so fixed for termination, to the Depositary will perform nofurther acts under the Deposit Agreement, except to advise Holders of suchtermination, receive and hold distributions on Deposited Securities (or sellproperty or rights or convert Deposited Securities into cash) and to deliverDeposited Securities being withdrawn. As soon as practicable after the expirationof six months from the date so fixed for termination, the Depositary shall sellthe Deposited Securities and shall thereafter (as long as it may lawfully doso) hold in a segregated account the net proceeds of any such sale, togetherwith any other cash then held by it under the Deposit Agreement, withoutliability for interest, in trust for the prorata benefit of theHolders of Receipts not theretofore surrendered. The obligation of theDepositary under paragraph (18) shall survive the termination of this DepositAgreement.

 

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EXHIBIT BTODEPOSIT AGREEMENT

 

CHARGES OF THE DEPOSITARY

 

The charges of the Depositary, subject to Sections 5.09 and 6.01 of theDeposit Agreement, are as follows:

 
| **Service** |                                                              | **Rate** |                                                      | **By Whom Paid** |
|-------------|-------------------------------------------------------------------|----------|-----------------------------------------------------------|------------------|
| (1)         | Delivery of  Receipts against deposits of Shares                  |     | $5 per 100  American Depositary Shares or portion thereof |             | Person to  whom Receipts are delivered |
|        |                                                              |     |                                                      |             |
| (2)         | Withdrawal  of Deposited Securities against surrender of Receipts |     | $5 per 100  American Depositary Shares or portion thereof |             | Person  surrendering Receipts |

 

The Company will pay all other charges of theDepositary and those of any Receipt registrar, co-transfer agent, co-registrarand any other agent of the Depositary (except the Custodian), plus reasonableexpenses such as printing, translation, stationery, postage, insurance, cables,etc., incurred by the Depositary or any such person in the exercise of itsduties and obligations under the Deposit Agreement, in accordance withagreements in writing entered into between the Depositary and the Company fromtime to time, except (a) stock transfer or other taxes and other governmentalcharges, (which are payable by persons depositing Shares or Holders), (b)cable, telex, facsimile transmission and delivery charges incurred at therequest of persons depositing Shares or Holders delivering Shares, Receipts orDeposited Securities (which are payable by such persons or Holders), (c)transfer or registration fees for the registration of transfers of depositedShares and other Deposited Securities on any applicable register in the name ofthe Custodian or its nominee in connection with the deposit of Shares or in thename of such person as a Holder may direct in connection with the withdrawal ofDeposited Securities (which are payable by persons depositing Shares or Holderswithdrawing Deposited Securities; there are no such fees payable by suchpersons or Holders in respect of the Shares as of the date of the DepositAgreement) and (d) expenses of the Depositary in connection with the conversionof foreign

 

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currency intoU.S. dollars (which are paid out of such foreign currency).

 

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