July 28, 2003
Via Edgar
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Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Rule 424(b)(3) Filing in respect of Form F-6 Registration Statement No.
333-11132 for American Depositary Shares representing ten (10) Class B
shares, par value one (1) Argentine Peso per Share, (the "Deposited
Shares"), of Petrobras Energia Participaciones S.A. (formerly, "Perez
Companc S.A."), a company incorporated under the laws of the Republic
of Argentina (the "Company").
Ladies and Gentlemen:
On behalf of Citibank, N.A., as Depositary (the "Depositary") and
acting on behalf of the legal entity created by the Deposit Agreement, dated as
of January 21, 2000, (the "Deposit Agreement"), by and among the Company, the
Depositary and all Holders and Beneficial Owners of American Depositary Shares
("ADSs") evidenced by American Depositary Receipts ("ADRs"), each representing
ten (10) Deposited Shares, I enclose for filing with the Securities and Exchange
Commission (the "Commission"), pursuant to Rule 424(b)(3) promulgated by the
Commission under the Securities Act of 1933, as amended (the "Act"), one (1)
copy of a form of the ADRs which are to be issued by the Depositary and which
reflect the change in the name of the Company from Perez Companc S.A. to
Petrobras Energia Participaciones S.A. and the resultant change in CUSIP Number
from 71367B103 to 71646M102.
As required by Rule 424(e) under the Act, the cover of the enclosed ADR
has been marked to indicate the paragraph of Rule 424 under which the filing is
being made and the file number of the Form F-6 Registration Statement previously
filed and declared effective in respect of the ADRs.
In anticipation of any subsequent filings with, and/or submissions to,
the Commission that the Company and/or the Depositary may make, we respectfully
request that the Commission modify its records to reflect the change in the name
of the Company from Perez Companc S.A. to Petrobras Energia Participaciones S.A.
and the resultant change in CUSIP Number from 71367B103 to 71646M102.
In the event any member of the Staff of the Commission has any
questions or comments concerning this filing, such person should contact the
undersigned at (212) 657-2129.
Very truly yours,
/s/ Audrey E. Williams
Audrey E. Williams
Enclosures
cc: Paul M. Dudek, Esq. (Securities and Exchange Commission - Office of
International Corporate Finance)
Nicole Joseph, Esq. (Shearman & Sterling)
Ricardo Szlezinger (Citibank, N.A. - ADR Department)
Mark Gherzo (Citibank, N.A. - ADR Department)
EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER: 71646M102
American Depositary Shares (each
American Depositary Share
representing ten (10) Fully Paid
Class B shares each one (1)
Argentine Peso per share
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED CLASS B SHARES
of
Petrobras Energia Participaciones S.A.
(Incorporated under the laws of the Republic of Argentina)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that ____________________ is the owner
of______________________American Depositary Shares (hereinafter "ADS"),
representing deposited Class B shares, each of Par Value of one (1) Argentine
Peso per share, including evidence of rights to receive such Class B Shares (the
"Shares") of Petrobras Energia Participaciones S.A., a corporation incorporated
under the laws of the Republic of Argentina (the "Company").
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As of the date of the Deposit Agreement (as hereinafter defined), each ADS
represents ten (10) Shares deposited under the Deposit Agreement with the
Custodian, which at the date of execution of the Deposit Agreement is Citibank,
N.A.- Buenos Aires branch (the "Custodian"). The ratio of American Depositary
Shares to Shares is subject to amendment as provided in Article IV of the
Deposit Agreement. The Depositary's Principal Office is located at 111 Wall
Street, New York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of
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an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of January 21, 2000 (as amended from time to time, the "Deposit Agreement"),
by and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of American Depositary Shares ("ADSs") evidenced by Receipts
issued thereunder, each of whom by accepting an ADS (or an interest therein)
agrees to become a party thereto and becomes bound by all the terms and
conditions thereof The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Estatutos of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
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Agreement and the Estatutos, to which reference is hereby made. All capitalized
terms used herein which are not otherwise defined herein shall have the meanings
ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
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The Holder of this Receipt (and of the ADSs evidenced hereby) shall be
entitled to Delivery (at the Custodian's designated office) of the Deposited
Securities at the time represented by the ADS(s) evidenced hereby upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly Delivered to the Depositary at its
Principal Office the ADSs evidenced hereby (and, if applicable, this Receipt)
for the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary, this Receipt has been properly endorsed
in blank or is accompanied by proper instruments of transfer in blank
(including signature guarantees in accordance with standard securities industry
practice), (iii) if so required by the Depositary, the Holder of the ADSs has
executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary
and all applicable taxes and governmental charges (as are set forth in Section
5.9 of the Deposit Agreement and Exhibit B to the Deposit Agreement) have been
paid, subject, however, in each case, to the terms and conditions of this
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Receipt, of the Deposit Agreement, of the Company's Estatutos, of any applicable
laws and the rules of the Caja de Valores, and to any provisions of or governing
the Deposited Securities, in each case as in effect at the time thereof
Upon satisfaction of each of the conditions specified above, the
Depositary shall (i) cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) direct the Registrar to record
the cancellation of the ADSs so Delivered on the books maintained for such
purpose, and (iii) direct the Custodian to Deliver (without unreasonable delay)
at the Custodian's designated office the Deposited Securities represented by the
ADSs so canceled together with any certificate or other document of title for
the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject
however, in each case, to the terms and conditions of the Deposit Agreement, of
this Receipt, of the Estatutos of the Company, of any applicable laws and the
rules of the Caja de Valores, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of surrender of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADS(s) so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
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withheld) to the person surrendering the ADSs. Notwithstanding anything else
contained in this Receipt or the Deposit Agreement, the Depositary may make
delivery at the Principal Office of the Depositary of (i) any cash dividends or
cash distributions, or (ii) any proceeds from the sale of any distributions of
Shares or rights, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so surrendering ADSs
represented by this Receipt, and for the account of such Holder, the Depositary
shall direct the Custodian to forward (to the extent permitted by law) any cash
or other property (other than securities) held by the Custodian in respect of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
(3) Transfer, Combination and Split-Up of Receipts. The Registrar shall
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register the transfer of this Receipt (and of the ADSs represented thereby) on
the books maintained for such purpose and the Depositary shall cancel this
Receipt and execute new Receipts evidencing the same aggregate number of ADSs as
those evidenced by this Receipt when canceled, shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
the order of the person entitled thereto, if each of the following conditions
has been satisfied: (1) this Receipt has been duly Delivered by the Holder (or
by a duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof, (ii) this Receipt has
been properly endorsed or is accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) this Receipt has been duly stamped (if required by the
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laws of the State of New York or of the United States), and (iv) all applicable
fees and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit
B to, the Deposit Agreement) have been paid, subject, however, in each case, to
the terms and conditions of this Receipt, of the Deposit Agreement and of
applicable law, in each case as in effect at the time thereof. The Registrar
shall register the split-up or combination of this Receipt (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall cancel this Receipt and execute new Receipts for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this Receipt (when canceled), shall cause the Registrar to countersign such new
Receipts, and shall Deliver such new Receipts to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) this
Receipt has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a split-up or combination hereof, and (ii) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes
and government charges (as are set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this Receipt, of the Deposit Agreement and of applicable
law.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
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precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
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ADSs or of a Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in the Deposit Agreement and in this Receipt, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters contemplated in the Deposit Agreement, and (iii)
compliance with (A) any laws or governmental regulations relating to the deposit
of Shares, the execution and delivery of Receipts or ADSs or to the withdrawal
of Deposited Securities and (B) such reasonable regulations of the Depositary or
the Company consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Company, the Depositary, a Registrar or the Share Registrar are closed or
if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this Receipt, or under any provision of,
or governing, the Deposited Securities, or because of a meeting of shareholders
of the Company or for any other reason, subject in all cases to Article (24)
hereof Notwithstanding any provision of the Deposit Agreement or this Receipt to
the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
the closing of the transfer books of the Depositary or the Company or the
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deposit of Shares in connection with voting at a shareholders' meeting or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
(5) Compliance With Information Requests. Notwithstanding any other
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provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to applicable law, the rules and requirements of the Buenos
Aires Stock Exchange, the New York Stock Exchange, and of any stock exchange on
which Shares are, or will be, registered, traded or listed, or the Estatutos of
the Company, which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares, as the
case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this
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Receipt or of the Deposit Agreement, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding
limits imposed by applicable law or the Estatutos of the Company. The Company
may also restrict, in such manner as it deems appropriate and upon notice to
such effect to the Depositary, transfers of ADSs where such transfer may result
in the total number of Shares represented by the ADSs owned by a single Holder
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or Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including but not
limited to, the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or a mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Estatutos of the
Company. As of the date hereof, there are no such limitations affecting
ownership of Shares under applicable laws of Argentina, the Estatutos of the
Company or any provisions of or governing Deposited Securities.
(7) Liability of Holder for Taxes and Other Charges. If any tax or
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other governmental charge, including, without limitation, any tax, duty or
governmental charge imposed under the laws of Argentina, shall become payable
with respect to any Receipt or any Deposited Securities or ADSs, such tax or
other governmental charge shall be payable by the Holders and Beneficial Owners
to the Depositary and the Depositary or the Custodian shall remit the same to
the appropriate taxing authority. The Company, the Custodian and/or Depositary
may withhold or deduct from any distributions made in respect of Deposited
Securities and may, upon notice to Holders of the assessment of any tax or other
governmental charges, sell for the account of the Holder any or all of the
Deposited Securities and shall apply such distributions and sale proceeds in
payment of such taxes or governmental charges (including applicable interest and
penalties), the Holders and the Beneficial Owners hereof remaining liable for
any deficiency. Without limitation of the foregoing, the parties hereto agree
that to the extent that the Company is determined by applicable Argentine taxing
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authorities to be, a "substitute taxpayer" for purposes of the Argentine
personal asset tax with respect to any Holder or Beneficial Owner and pursuant
to such determination pays any amounts in respect of such tax, the Company may
take any of the actions described in the preceding sentence to recover any
amounts so paid from the applicable Holder or Beneficial Owner. The Custodian
may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, to register the transfer, split-up or combination of ADRs and
(subject to Article (24) hereof) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of American Depositary Shares may
be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
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withholding at source or other tax benefit obtained on behalf of such Holders
and Beneficial Owners on the basis of information provided by such Holders and
Beneficial Owners.
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary, if so requested, information about such taxes or governmental
charges withheld or paid, and, if so requested, the tax receipt (or other proof
of payment to the applicable governmental authority) therefor, in each case, in
a form reasonably satisfactory to the Depositary. The Depositary shall, to the
extent required by U.S. law, report to Holders any taxes withheld by it or the
Custodian, and, if such information is provided to it by the Company, any taxes
withheld by the Company. The Depositary and the Custodian shall not be required
to provide the Holders with any evidence of the remittance by the Company (or
its agents) of any taxes withheld, or of the payment of taxes by the Company,
except to the extent the evidence is provided by the Company to the Depositary.
Neither the Depositary nor the Custodian shall be liable for the failure by any
Holder or Beneficial Owner to obtain the benefits of credits against such
Holder's or Beneficial Owner's income tax liability on the basis of non-U.S. tax
paid.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
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"Foreign Personal Holding Company," or as a "Passive Foreign Investment Company"
(in each case as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
(8) Representations and Warranties of Depositors. Each person
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depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor, if
any, are duly authorized, validly issued, fully paid, non-assessable and legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do and (iv) the Shares presented
for deposit are free and clear of any lien, encumbrance, security interest,
charge, mortgage or adverse claim and are not, and the ADSs issuable upon such
deposit will not be, Restricted Securities and the Shares presented for deposit
have not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations or warranties are false in any way, the Company and
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof
(9) Filing Proofs. Certificates and Other Information. Any person
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presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
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Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the Depositary or the Custodian may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. The Depositary and the Registrar, as
applicable, may, and at the request of the Company shall, withhold the execution
or delivery or registration of transfer of any Receipt or the distribution or
sale of any dividend or other distribution of rights or of the proceeds thereof
or, to the extent not limited by Article (24) hereof, the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed, or such representations are made or such information
and documentation are provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or portion thereof) so issued under the terms of the
Deposit Agreement (excluding issuances pursuant to
paragraphs (iii) and (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or portion thereof) so
surrendered;
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(iii) to any Holder of ADRs, a fee not in excess of U.S. $
2.00 per 100 ADSs (or portion thereof) held for the
distribution of cash proceeds (i.e., upon the sale of
rights and other entitlements); no fee shall be
payable for the distribution of cash dividends or the
distribution of ADSs pursuant to stock dividends or
other free distributions of Shares as long as such
fees are prohibited by the exchange upon which the
ADSs are listed; and
(iv) to any Holder of ADRs, a fee not in the excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) issued upon
the exercise of rights.
In addition, Holders, Beneficial Owners, persons depositing Shares
for deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and
other governmental charges;
(ii) such registration fees as may from time to time be in
effect for the registration of Shares or other Deposited
Securities on the share register and applicable to
transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals,
respectively;
(iii) such courier, cable, telex and facsimile transmission
and delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of the person
depositing or withdrawing Shares or Holders and
Beneficial Owners of ADSs;
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(iv) the expenses and charges incurred by the Depositary in
the conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary
in connection with compliance with exchange control
regulations and other regulatory requirements applicable
to Shares, Deposited Securities, ADSs and ADRs, and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
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successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that the Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any notice to
the contrary, the Company and the Depositary may deem and treat the Holder of
this Receipt (that is, the person in whose name this Receipt is registered on
the books of the Depositary) as the absolute owner thereof for all purposes.
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Neither the Depositary nor the Company shall have any obligation or be subject
to any liability under the Deposit Agreement or this Receipt to any holder of
this Receipt or any Beneficial Owner unless such holder is the Holder of this
Receipt registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner's representative
is the Holder registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the ADSs represented
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hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of Receipts. Receipts bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
------------------------------------------------------------
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington D.C. 20549. The Depositary shall make available for inspection by
A-16
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may, upon notice to the Company, close the transfer books
with respect to the Receipts, at any time or from time to time, when deemed
necessary or advisable by it in good faith in connection with the performance of
its duties hereunder, or at the reasonable written request of the Company
subject, in all cases, to Article (24) hereof
Dated: CITIBANK, N.A.,
as Depositary
CITIBANK, N.A.
Transfer Agent and Registrar
By: By:
---------------------- ------------------------
Authorized Signatory Vice President
The address of the Principal Office of the Depositary is 111 Wall
Street, New York, New York 10043, U.S.A.
A-17
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
------------------------------------------------
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights, securities or other entitlements
under the Deposit Agreement, the Depositary will (i) if at the time of receipt
thereof any amounts received in a Foreign Currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (upon the terms of the Deposit Agreement), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
will distribute promptly the amount thus received (net of (a) applicable fees
and charges of, and expenses incurred by, the Depositary and (b) taxes withheld)
to the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
A-18
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net (a) of the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell
the number of Shares or ADSs, as the case may be, represented by the aggregate
of such fractions and distribute the net proceeds upon the terms set forth in
the Deposit Agreement.
A-19
In the event that the Depositary reasonably determines that any
distribution in property (including Shares) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or, if the
Company in the fulfillment of its obligations under the Deposit Agreement, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), the Depositary
may, after consultation with the Company, dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable and the Depositary shall distribute the net proceeds
of any such sale (after deduction of (a) taxes and fees and (b) charges of, and
expenses incurred by, the Depositary) to Holders entitled thereto upon the terms
of the Deposit Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS record date according to Article (16) and establish procedures to enable
the Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be distributed as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Shares. If
the elective distribution is not lawful or practicable, the Depositary shall, to
A-20
the extent permitted by law, distribute to the Holders, on the basis of the same
determination as is made in Argentina in respect of the Shares for which no
election is made, either (X) cash upon the terms described in Section 4.1 of the
Deposit Agreement or (Y)
additional ADSs representing such additional Shares upon the terms described in
Section 4.2 of the Deposit Agreement. Nothing herein or in the Deposit Agreement
shall obligate the Depositary to make available to the Holder hereof a method to
receive the elective distribution in Shares (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have requested that such rights be made
available to Holders, (ii) the Depositary shall have received the documentation
contemplated in the Deposit Agreement, and (iii) the Depositary shall have
determined that such distribution of rights is reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as described
below. In the event all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date (upon the terms described in the Deposit
Agreement) and establish procedures (x) to distribute such rights (by means of
warrants or otherwise), (y) to enable the Holders to exercise the rights (upon
payment of the subscription price and of the applicable (a) fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), and (z) to
A-21
deliver ADSs upon the valid exercise of such rights. Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holders
a method to receive Shares issued upon the exercise of rights in any form other
than in the form of ADSs issued under the Deposit Agreement. If (i) the Company
does not request the Depositary to make the rights available to Holders or if
the Company requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive the documentation required by the Deposit Agreement
or determines it is not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem proper. The Depositary shall, upon such sale, convert and distribute the
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes) upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to make any rights available to Holders
or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. Neither the Company nor the
Depositary shall be responsible for (i) any failure to determine that it may be
lawful or feasible to make such rights available to Holders in general or any
Holders in particular, or (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise. The Depositary shall not be responsible
for the content of any materials forwarded to the ADR Holders on behalf of the
Company in connection with any rights distribution under the Deposit Agreement.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to required in order for the Company to offer
A-22
such rights or such securities to Holders and to sell the securities represented
by such rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act (or other
applicable law) covering such offering is in effect or (ii) unless the Company
furnishes the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed in each case satisfactory to the Depositary, to the
effect that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the provisions of
the Securities Act or any other applicable laws. In the event that the Company,
the Depositary or the Custodian shall be required to withhold and does withhold
from any distribution of property (including rights) an amount on account of
taxes or other governmental charges, the amount distributed to the Holders of
ADSs representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, the
Depositary, after consultation with the Company and subject to applicable laws
and regulations, may dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary and
practicable to pay any such taxes or charges.
Nothing herein or in the Deposit Agreement shall obligate the Company
to file any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights or to have such
registration statement declared effective.
A-23
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall consult with the Company, and the Company
shall assist the Depositary, to determine whether such distribution to Holders
is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may, after consultation with the Company, dispose of all or a portion of the
property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall (1) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders upon the terms hereof and of the Deposit Agreement. If the
A-24
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
----------
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, the Depositary shall mail to
each Holder a notice setting forth the Company's intention to exercise the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. Upon receipt of confirmation that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, distribute the proceeds (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary, and (b)
taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by Holders
thereof upon the terms of the Deposit Agreement. If less than all outstanding
Deposited Securities are redeemed, the ADSs to be retired will be selected by
lot or on a pro rata basis, as may be determined by the Depositary. The
redemption price per ADS shall be the dollar equivalent of per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (subject to the terms of the Deposit
Agreement and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Units or Deposited Securities
represented by each ADS redeemed. Holders or Beneficial Owners who wish to
exercise withdrawal rights (derecho de receso) under Argentine law will be
required to make arrangements for such action with the Depositary in accordance
with the provisions of Argentine law and the Estatutos.
A-25
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
-------------------------
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, or any other matter, the Depositary
shall fix a record date ("ADS Record Date") for the determination of the Holders
of Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to applicable law and
the terms and conditions of this Receipt and the Deposit Agreement, only the
Holders of Receipts at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such instructions, to
receive such notice or solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after
------------------------------
receipt from the Company of the notice of any meeting at which the holders of
Shares or other Deposited Securities are entitled to vote, or of solicitation of
consents or proxies from holders of Shares or other Deposited Securities, the
Depositary shall fix the ADS Record Date in respect of such meeting or
solicitation of consent or proxy. The Depositary shall, if requested by the
Company in writing in a timely manner (the Depositary having no obligation to
take any further action if the request, accompanied by the written
A-26
recommendations of the Board of Directors of the Company and the opinion of
counsel, each as described below and in the Deposit Agreement, shall not have
been received by the Depositary at least 20 days prior to the date of such vote
or meeting), at the Company's expense and provided no U.S. legal prohibitions
exist, mail to Holders: (a) such notice of meeting or solicitation of consent or
proxy, (b) a statement that the Holders at the close of business on the ADS
Record Date will be entitled, subject to any applicable law, the provisions of
this Deposit Agreement, the Estatutos and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company if necessary), to instruct the Depositary as to the exercise
of the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's ADSs, (c) a brief statement as to the
manner in which such instructions may be given and (d) a statement that if no
instructions are timely received by the Depositary from Holders, such lack of
instructions will be deemed to be an instruction to vote in accordance with the
recommendations of the Board of Directors made to all holders of Shares, and the
Depositary will endeavor to vote (or cause the Custodian to vote) the Shares and
other Deposited Securities represented by such Holders' ADSs in the manner and
under the conditions specified in Section 4.10 of the Deposit Agreement. Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Shares or other Deposited Securities. Upon the timely receipt
from a Holder of ADSs as of the ADS Record Date of voting instructions in the
manner specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of this Deposit
Agreement, the Estatutos and the provisions of the Deposited Securities, to vote
A-27
or cause the Custodian to vote the Shares and/or other Deposited Securities (in
person or by proxy) represented by such Holder's ADSs in accordance with such
instructions.
Holders or Beneficial Owners of ADSs who wish to exercise their right
under the terms of the Estatutos to propose candidates for election as directors
of the Company at a shareholders' meeting will be required to make arrangements
for such proposal with the Company in accordance with the provisions of
Argentine law and the Estatutos. The Depositary shall not exercise, or cause the
Custodian to exercise, cumulative voting rights with respect to Shares held on
deposit under the terms of the Deposit Agreement. Holders and Beneficial Owners
of ADSs who wish to exercise their rights under the terms of the Estatutos to
exercise cumulative voting rights with respect to the Shares referenced by their
ADSs will be required to make timely arrangements with (i) the Depositary for
the cancellation of their ADSs under the terms of the Deposit Agreement and the
delivery of Shares represented by the ADSs so canceled and (ii) the Company to
exercise the cumulative voting rights as holders of Shares under the terms of
the Estatutos.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with (i) such written instructions from Holders or (ii) in
the event no such instructions are received, the provisions set forth herein and
in the Deposit Agreement. If voting instructions are received by the Depositary
from any Holder on or before the date established by the Depositary for the
receipt of such instructions, which are signed but without further indication
A-28
as to specific instructions, the Depositary will deem such Holder to have
instructed the Depositary to vote in favor of the items set forth in such
instructions. The Depositary shall safekeep all records received by it relating
to the solicitation of voting instructions from Holders of ADSs pursuant to the
Deposit Agreement in accordance with industry practice.
Notwithstanding anything else contained in herein or in the Deposit
Agreement, if the Depositary does not timely receive voting instructions from a
Holder, the Depositary shall be deemed to have been instructed by such Holder to
vote in accordance with the written recommendations of the Board of Directors
made to all holders of Shares and endeavor to vote or cause the Custodian to
vote the Shares and other Deposited Securities represented by such Holder's ADSs
in accordance with such written recommendations provided that (i) the
-------- ----
recommendations of the Board of Directors have been timely disclosed to Holders
as of the applicable ADS Record Date in the notice specified above and (ii) the
Company has timely provided to the Depositary an opinion of Argentine counsel
reasonably acceptable to the Depositary.
Notwithstanding anything else contained herein or in the Deposit
Agreement, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Shares or other Deposited Securities if the taking of such action would violate
U.S. or Argentine laws. There can be no assurance that Holders generally or any
Holder in particular will receive the notice described above with sufficient
time to enable the Holder to return voting instructions to the Depositary in a
timely manner. Any shareholder of the Company who votes on any matter involving
the Company in which the shareholder's interests conflict with the interests of
A-29
the Company may under Argentine law be liable for damages to the Company
resulting from the shareholder's vote but only if the matter would not have been
approved without the shareholder's vote. In addition, under Argentine law,
shareholders who vote in favor of a resolution that is subsequently declared
void by a court as contrary to Argentine law, applicable Argentine regulations
or the Estatutos may be held jointly and severally liable for damages to the
Company, other shareholders or third parties resulting from that resolution.
Every Holder and Beneficial Owner by instructing the Depositary to vote the
Shares represented by such Holder's or Beneficial Owner's ADSs agrees to
indemnify the Depositary, the Custodian and their respective officers,
directors, employees and agents for any liability, loss or expense (including,
without limitation, legal fees and expenses) incurred by any of them in carrying
out the voting instructions of such Holder or Beneficial Owner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
--------------------------------------
or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
A-30
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt,
specifically describing such new Deposited Securities or corporate change.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall if the Company requests, subject to receipt of
satisfactory legal documentation contemplated in the Deposit Agreement, sell
such securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) for the account of the Holders otherwise entitled to such securities and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to the Deposit Agreement.
Neither the Company nor the Depositary shall be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
-----------
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, the Republic of Argentina or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or by
A-31
reason of any provision, present or future of the Estatutos of the Company or
any provision of or governing any Deposited Securities, or by reason of any act
of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Estatutos of the
Company or provisions of or governing Deposited Securities, (iii) for any action
or inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for any inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement. The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this Receipt.
(20) Standard of Care. The Company, its Affiliates and its agents
----------------
assume no obligation and shall not be subject to any liability under this
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Company and its agents agree to perform their
A-32
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith. The Depositary and its agents assume no obligation and shall not
be subject to any liability under this Deposit Agreement or the Receipts to
Holders or Beneficial Owners or other persons, except that the Depositary and
its agents agree to perform their obligations specifically set forth in this
Deposit Agreement without negligence or bad faith. The Depositary and its agents
shall not be liable for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which any vote is cast or the
effect of any vote, provided that any such action or omission is in good faith
and in accordance with the terms of this Deposit Agreement. The Depositary shall
not incur any liability for any failure to determine that any distribution or
action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for any investment risk
associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of this Deposit Agreement or for the failure or timeliness of any notice
from the Company.
(21) Resignation and Removal of the Depositary: Appointment of Successor
-------------------------------------------------------------------
Depositary. The Depositary may at any time resign as Depositary under the
----------
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (1) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
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60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon payment of all
sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further act.
(22) Amendment/Supplement. This Receipt and any provisions of the
Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
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consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to
be traded solely in electronic book-entry form and (ii) do not in either such
case impose or increase any fees or charges to be borne by Holders, shall be
deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or
regulations which would require amendment or supplement of the Deposit Agreement
to ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and this Receipt at any time in accordance with
such changed laws, rules or regulations. Such amendment or supplement to the
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Deposit Agreement in such circumstances may become effective before a notice of
such amendment or supplement is given to Holders or within any other period of
time as required for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
-----------
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to Delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
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acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six months from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
whose Receipts have not theretofore been surrendered (such Holders thereupon
becoming general creditors of the Depositary). After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts and the Shares, the Deposited Securities and the
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except as set forth in the Deposit Agreement.
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(24) Compliance with U.S. Securities Laws. Notwithstanding any
------------------------------------
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
---------------------------------------------
further terms and provisions of this Article (25) and applicable law, the
Depositary, its Affiliates and their agents, on their own behalf, may own and
deal in any class of securities of the Company and its Affiliates and in ADSs.
In its capacity as Depositary, the Depositary shall not lend Shares or ADSs,
provided, however, that the Depositary may (i) issue ADSs prior to the receipt
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of Shares pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver
Shares prior to the receipt of ADSs for withdrawal of Deposited Securities
pursuant to Section 2.7 of the Deposit Agreement, including ADSs which were
issued under (i) above but for which Shares may not have been received (each
such transaction a "Pre-Release Transaction"). The Depositary may receive ADSs
in lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) accompanied by or subject
to a written agreement whereby the person or entity (the "Applicant") to whom
ADSs or Shares are to be delivered (w) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares or ADSs
that are to be delivered by the Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares or ADSs in its
records and to hold such Shares or ADSs in trust for the Depositary until such
Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
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applicable, such Shares or ADSs and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral of
comparable safety and liquidity as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), provided, however, that the Depositary reserves the right to
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change or disregard such limit from time to time as it deems appropriate. The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case by case basis
as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not earnings thereon, shall be held for the
benefit of the Holders (other than the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _____________________________________________ whose taxpayer
identification number is ___________________________________ and whose address
including postal zip code is____________________________, the within Receipt and
all rights thereunder, hereby irrevocably constituting and appointing
____________________________________attorney-in-fact to transfer said Receipt on
the books of the Depositary with full power of substitution in the premises.
Dated: Name:-----------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument
in every particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an attorney,
executor, administrator, trustee or guardian,
the person executing the endorsement must give
his/her full title in such capacity and proper
evidence of authority to act in such capacity,
if not on file with the Depositary, must be
forwarded with this Receipt.
All endorsements or assignments of Receipts
must be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
SIGNATURE GUARANTEED
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Legends
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The Receipts issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the Receipt: "This Receipt
evidences American Depositary Shares representing partial entitlement of Class B
shares of Petrobra Energia Participaciones S.A. and as such do not entitle the
holders thereof to the same per-share entitlement as other Class B shares (which
are "full entitlement" Class B shares) issued and outstanding at such time. The
American Depositary Shares represented by this Receipt shall entitle holders to
distributions and entitlements identical to other American Depositary Shares
when the Class B Shares represented by such American Depositary Shares become
"full entitlement" Class B Shares."
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