As filed with the Securities and Exchange Commission on
December 3, 2003 Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 FOR AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
--------------------------------
ENERSIS S.A.
(Exact name of issuer of deposited securities as specified in its charter)
--------------------------------
N/A
(Translation of issuer's name into English)
--------------------------------
REPUBLIC OF CHILE
(Jurisdiction of incorporation or organization of issuer)
--------------------------------
CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
-------------------------------- -
111 Wall Street
New York, New York 10043
(212) 657-5100
(Address, including zip code, and telephone number, including
area code, of Depositary's principal executive offices)
--------------------------------
Mr. Donald J. Puglisi
puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
(Name, address, including zip code, and telephone number, including
area code of agent for service)
--------------------------------
Copies to:
Nicholas Kronfeld Mildred Quinones-Holmes, Esq.
Davis Polk & Wardwell Citibank, N.A.
450 Lexington Avenue 388 Greenwich Street, 19th Floor
New York, NY 10016 New York, New York 10013
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It is proposed that this filing become effective under Rule 466:
|X| immediately upon filing.
|_| on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box |_|.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Amount of
Title of Each Amount to be Maximum Maximum Registration
Class of Securities Registered Aggregate Aggregate Fee
to be Registered Offering Offering
Price Per Price**
ADS*
- --------------------------------------------------------------------------------
American Depositary 100,000,000 $5.00 $5,000,000 $404.50
Shares, each
representing fifty
(50)common shares,
without par value,
of Enersis S.A.
- --------------------------------------------------------------------------------
* Each unit represents 100 American Depositary Shares.
** Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of such receipts evidencing such American Depositary Shares.
This Registration Statement may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of such counterparts together shall
constitute one and the same instrument.
ii
PART I
INFORMATION REQUIRED IN PROSPECTUS
CROSS REFERENCE SHEET
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
Location in Form of American
Depositary Receipt ("Receipt")
Item Number and Caption Filed Herewith as Prospectus
----------------------------
1. Name and address of Depositary Face of Receipt, Introductory
Paragraph
2. Title of Receipts and Face of Receipt, top center
identity of deposited securities
Terms of Deposit:
(i) The amount of deposited Face of Receipt, upper right corner
securities represented by
one American Depositary
Share
(ii) The procedure for voting, Reverse of Receipt, Paragraphs (13)
if any, the deposited and (14)
securities
(iii) The collection and Face of Receipt, Paragraph (4)
distribution of dividends Reverse of Receipt, Paragraphs (12)
and (13)
(iv) The transmission of Reverse of Receipt, Paragraphs (13)
notices, reports and proxy and (16)
soliciting material
(v) The sale or exercise of Reverse of Receipt, Paragraph (12)
rights
(vi) The deposit or sale of Face of Receipt, Paragraph (3);
securities resulting from Reverse of Receipt, Paragraph (15)
dividends, splits or plans
of reorganization
(vii) Amendment, extension or Reverse of Receipt, Paragraphs (21)
termination or the deposit and (22) (no provision for
agreement extension)
I-1
(viii)Rights of holders of Reverse of Receipt, Paragraph (16)
Receipts to inspect the
transfer books of the
depositary and the list of
holders of Receipts
(ix) Restrictions upon the right Face of Receipt, Paragraphs (2),
to deposit or withdraw the (3), (4), (5), (6) and (7)
underlying securities
(x) Limitation upon the Reverse of Receipt, Paragraph (19)
liability of the depositary
3. Fees and charges which may be Face of Receipt, Paragraph (6)
imposed directly or indirectly
against holders of Receipts
Item 2. AVAILABLE INFORMATION Face of Receipt, Paragraph (9)
Enersis S.A. is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934, as amended, and, accordingly, files certain
reports with the Securities and Exchange Commission (the "Commission"). These
reports and other information can be inspected by holders of Receipts and copied
at public reference facilities maintained by the Commission located at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and the following Regional
Office of the Commission: Chicago Regional Office, Suite 1400, Citicorp Center,
500 West Madison Street, Chicago, Illinois 60661.
I-2
PROSPECTUS
THE PROSPECTUS CONSISTS OF THE FORM OF AMERICAN DEPOSITARY
RECEIPT, ATTACHED AS EXHIBIT A TO THE AMENDED AND RESTATED
DEPOSIT AGREEMENT FILED AS EXHIBIT (a) TO THIS REGISTRATION
STATEMENT AND INCORPORATED HEREIN BY REFERENCE.
I-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) Amended and Restated Deposit Agreement, dated as of June 1,
1994, among Enersis S.A., a corporation organized and existing under the laws of
the Republic of Chile (the "Company"), Citibank, N.A., as depositary (the
"Depositary"), and all Holders from time to time of American Depositary Receipts
("ADRs") issued thereunder (including the form of American Depositary Receipt
("ADR") to be issued thereunder). - Filed herewith as Exhibit (a).
(b) Form of Foreign Exchange Contract.*
(c) Any other agreement, to which the Depositary is a party
relating to the issuance of the American Depositary Shares registered hereby
or the custody of the deposited securities. - None
(d) Opinion of Frettra M. Miller, counsel to the Depositary, as
to the legality of the securities to be registered. - Filed herewith as Exhibit
(d).
(e) Certification under Rule 466. - Filed herewith as Exhibit
(e).
(f) Powers of Attorney for certain officers and directors and
the authorized representative in the United States of the Company - Set forth on
the signature pages herein.
Item 4. UNDERTAKINGS
a) The Depositary hereby undertakes to make available at the
principal office of the Depositary in the United States, for inspection by
holders of the ADRs, any reports and communications received from the issuer of
the deposited securities which are both: (1) received by the Depositary as the
holder of the deposited securities; and, (2) made generally available to the
holders of the underlying securities by the issuer.
b) If the Depositary hereby undertakes to prepare a separate
document stating the amount of any fee charged and describing the service for
which it is charged and to deliver promptly a copy of such fee schedule without
charge to anyone upon request. The Depositary undertakes to notify each
registered holder of an ADR at least thirty (30) days before any change in the
fee schedule.
- -----------------------------------
* Previously filed
II-1
SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, as
amended, Citibank, N.A., on behalf of the legal entity created by the Amended
and Restated Deposit Agreement, dated as of June 1, 1994, among Enersis S.A., a
corporation organized and existing under the laws of the Republic of Chile,
Citibank, N.A., as depositary, and all Holders of American Depositary Receipts
issued thereunder, certifies that it has reasonable grounds to believe that all
the requirements for filing on Form F-6 are met and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 1st day of
December, 2003.
Legal entity created by the Amended and
Restated Deposit Agreement for the
issuance of American Depositary
Receipts evidencing American Depositary
Shares, each representing fifty (50)
common shares, without par value, of
Enersis S.A.
CITIBANK, N.A., as Depositary
By: /s/ Ricardo R. Szlezinger
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Name: Ricardo R. Szlezinger
Title: Vice President
SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, as
amended, Enersis S.A. certifies that it has reasonable grounds to believe that
all the requirements for filing on Form F-6 are met and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Santiago, Chile, on the 1st day of December, 2003.
Enersis S.A.
By: /s/ Domingo Valdes
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Name: Domingo Valdes
Title: General Counsel
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Domingo Valdes to act as his/her true and
lawful attorney-in-fact and agent, with full power of substitution, for him/her
and in his/her name, place and stead, in any and all capacities, to sign any or
all amendments, including post-effective amendments, and supplements to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the United States Securities and
Exchange Commission, granting unto said attorney(s)-in-fact and agent(s) full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, hereby ratifying and confirming
all that said attorney(s)-in-fact and agent(s), or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the following capacities on December 1, 2003.
Name Title
- ---- ------
/s/ Pablo Yrarrazaval Chairman of the Board of Directors
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Name: Pablo Yrarrazaval
Vice Chairman of the Board of Directors
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Name: Rafael Miranda
Director
- -------------------------------
Name: Jose Palomo
/s/ Ernesto Silva Director
- -------------------------------
Name: Ernesto Silva
/s/ Eugenio Tironi Director
- -------------------------------
Name: Eugenio Tironi
Director
- -------------------------------
Name: Hernan Somerville
Director
- -------------------------------
Name: Alfonso Arias
/s/ Mario Valcarce CEO
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Name: Mario Valcarce
/s/ Alfredo Ergas CFO
- -------------------------------
Name: Alfredo Ergas
/s/ Domingo Valdes Legal Counsel
- -------------------------------
Name: Domingo Valdes
/s/ Fernando Isac Accounting Director
- -------------------------------
Name: Fernando Isac
Authorized Representative in the United States
/s/ Donald J. Puglisi
- -------------------------------
Name: Donald J. Puglisi
Index to Exhibits
-----------------
Sequentially
Exhibit Document Numbered Page
------- -------- --------------
(a) Amended and Restated
Deposit Agreement
dated as of June 1, 1994
(d) Opinion of counsel to
the Depositary
(e) Certification under Rule 466
(a) Amended and Restated Deposit Agreement dated as of June 1, 1994
- --------------------------------------------------------------------------------
ENERSIS S.A.
and
CITIBANK, N.A.,
As Depositary
and
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
--------------------------------------------------
Amended and Restated Deposit Agreement
--------------------------------------------------
Dated as of June 1, 1994
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Parties ....................................................................1
Recitals ...................................................................1
ARTICLE I
DEFINITIONS
SECTION 1.01. American Depositary Shares ..............................1
SECTION 1.02. Central Bank ............................................2
SECTION 1.03. Chile ...................................................2
SECTION 1.04. Commission ..............................................2
SECTION 1.05. Company .................................................2
SECTION 1.06. Custodian ...............................................2
SECTION 1.07. Deposit Agreement .......................................2
SECTION 1.08. Depositary ..............................................2
SECTION 1.09. Deposited Securities ....................................2
SECTION 1.10. Dollars .................................................2
SECTION 1.11. Foreign Exchange Contract ...............................3
SECTION 1.12. Foreign Registrar .......................................3
SECTION 1.13. Holder ..................................................3
SECTION 1.14. Principal Office ........................................3
SECTION 1.15. Receipts ................................................3
SECTION 1.16. Registrar ...............................................3
SECTION 1.17. Securities Act of 1933 ..................................3
SECTION 1.18. Securities Exchange Act of 1934 .........................3
SECTION 1.19. Shares ..................................................3
SECTION 1.20. SVS .....................................................4
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts ....................4
SECTION 2.02. Deposit of Shares .......................................5
SECTION 2.03. Execution and Delivery of Receipts ......................7
SECTION 2.04. Transfer of Receipts; Combination
and Split-up of Receipts ...........................8
SECTION 2.05. Surrender of Receipts and Withdrawal
of Deposited Securities ............................8
SECTION 2.06. Limitations on Execution and Delivery,
Transfer and Surrender of Receipts .................10
SECTION 2.07. Lost Receipts, etc.......................................11
SECTION 2.08. Cancellation and Destruction of
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Page
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Surrendered Receipts ...............................12
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and
Other Information .............................12
SECTION 3.02. Liability of Holder for Taxes ...........................12
SECTION 3.03. Warranties on Deposit of Shares .........................13
SECTION 3.04. Disclosure of Interests .................................13
SECTION 3.05. Compliance with Chilean Law .............................13
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney .......................................14
SECTION 4.02. Cash Distributions; Withholding .........................14
SECTION 4.03. Distributions Other Than Cash or Shares .................15
SECTION 4.04. Distributions in Shares .................................16
SECTION 4.05. Rights ..................................................16
SECTION 4.06. Conversion of Foreign Currency .........................18
SECTION 4.07. Fixing of Record Date ...................................19
SECTION 4.08. Voting of Deposited Securities ..........................20
SECTION 4.09. Changes Affecting Deposited Securities ..................21
SECTION 4.10. Available Information ...................................21
SECTION 4.11. Reports .................................................21
SECTION 4.12. Lists of Receipt Holders ................................22
SECTION 4.13. Taxation ................................................22
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer
Books by the Depositary ............................23
SECTION 5.02. Prevention or Delay in Performance
by the Depositary or the Company ...................24
SECTION 5.03. Obligations of the Depositary, the
Custodian and the Company ..........................24
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of
Successor Depositary ...............................25
SECTION 5.05. The Custodian ...........................................26
SECTION 5.06. Notices and Reports .....................................27
SECTION 5.07. Issuance of Additional Shares, Etc ......................27
SECTION 5.08. Indemnification .........................................28
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Page
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SECTION 5.09. Charges of Depositary ...................................30
SECTION 5.10. Certain Rights of the Depositary;
Limitations ........................................30
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment ...............................................31
SECTION 6.02. Termination .............................................32
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts ............................................33
SECTION 7.02. No Third Party Beneficiaries ............................33
SECTION 7.03. Severability ............................................33
SECTION 7.04. Holders Parties; Binding Effect .........................33
SECTION 7.05. Notices .................................................33
SECTION 7.06. Governing Law ...........................................34
SECTION 7.07. Compliance with U.S. Securities Laws ....................34
[FORM OF FACE OF RECEIPT]
(1) The Deposit Agreement ............................................A-2
(2) Surrender of Receipts and Withdrawal of
Deposited Securities .........................................A-2
(3) Transfers, Split-ups and Combinations ............................A-3
(4) Liability of Holder for Taxes ....................................A-5
(5) Agreements by Depositor ..........................................A-5
(6) Charges of Depositary ............................................A-5
(7) Title to Receipt .................................................A-6
(8) Validity of Receipt ..............................................A-6
(9) Available Information ............................................A-6
(10) Disclosure of Beneficial ownership ...............................A-6
(11) Compliance with Chilean Law ......................................A-7
(FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Dividends and Distributions; Rights ..............................A-8
(13) Record Dates .....................................................A-10
(14) Voting of Deposited Securities ...................................A-10
(15) Changes Affecting Deposited Securities ...........................A-11
(16) Reports; Inspection of Transfer Books ............................A-11
(17) Taxation .........................................................A-11
iii
Page
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(18) Certain Rights of the Depositary; Limitations ....................A-12
(19) Liability of the Company and the Depositary ......................A-13
(20) Resignation and Removal of Depositary;
Substitution of the Custodian ................................A-14
(21) Amendment of Deposit Agreement and Receipts ......................A-14
(22) Termination of Deposit Agreement .................................A-14
(23) Compliance with U.S. Securities Laws..............................A-15
CHARGES OF THE DEPOSITARY ..................................................B-1
iv
DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of June 1, 1994 among
ENERSIS S.A., a corporation organized and existing under the laws of the
Republic of Chile (herein called the "Company"), CITIBANK, N.A., a national
banking association organized and existing under the laws of the United States
of America (herein called the "Depositary"), and all Holders (as hereinafter
defined) from time to time of American Depositary Receipts issued hereunder
amending and restating the Deposit Agreement dated October 18, 1993 among the
Company, the Depositary and all Holders (the "Original Agreement").
WITNESSETH:
WHEREAS, the parties hereto desire through the Depositary to provide
for the deposit of Shares of the Company from time to time with the Depositary
or a Custodian, as agents of the Depositary for the purposes set forth in this
Deposit Agreement, for the creation of American Depositary Shares representing
such Shares so deposited and for the execution and delivery of American
Depositary Receipts evidencing such American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
WHEREAS, the parties hereto have requested that the Original Agreement
be restated on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, the parties agree
that the original Agreement shall be amended and restated as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the following respective terms used in this Deposit
Agreement:
SECTION 1.01. American Depositary Shares. The term "American Depositary
--------------------------
Shares" shall mean the rights evidenced by the Receipts issued hereunder
including the interests in the Deposited Securities granted to the Holders of
Receipts pursuant to the terms and conditions of this Deposit Agreement. Each
American Depositary Share shall represent fifty Shares; provided, however, that
-------- -------
if there shall occur a distribution upon Deposited Securities covered by Section
4.04 or a change in Deposited Securities covered by Section 4.09 with respect to
which additional Receipts are not executed and delivered, the term "American
Depositary Shares" shall thereafter represent the number of Shares or Deposited
Securities determined in accordance with such Sections.
SECTION 1.02. Central Bank. The term "Central Bank" shall mean Banco
------------
Central de Chile and its successors.
SECTION 1.03. Chile. The term "Chile" shall mean the Republic of Chile.
-----
SECTION 1.04. Commission. The term "Commission" shall mean the
----------
Securities and Exchange Commission of the United States or any successor
governmental agency in the United States.
SECTION 1.05. Company. The term "Company" shall mean ENERSIS S.A., a
-------
corporation organized and existing under the laws of the Republic of Chile,
having its principal offices at Santiago, Chile, and its successors.
SECTION 1.06. Custodian. The term "Custodian" shall mean one or more
---------
agents of the Depositary for purposes of this Deposit Agreement, and any other
firm or corporation which may hereafter be appointed by the Depositary, with
notice to the Company, pursuant to the terms of Section 5.05, as substitute
custodian hereunder, as the context shall require, and the term "Custodians"
shall mean all such persons, collectively.
SECTION 1.07. Deposit Agreement. The term "Deposit Agreement" shall
-----------------
mean this Agreement, as the same may be amended from time to time in accordance
with the provisions hereof.
SECTION 1.08. Depositary. The term "Depositary" shall mean Citibank,
----------
N.A., a national banking association organized and existing under the laws of
the United States of America, and any successor as depositary hereunder.
SECTION 1.09. Deposited Securities. The term "Deposited Securities" as
--------------------
of any time shall mean Shares at such time deposited or deemed to be deposited
under this Deposit Agreement and any and all other securities, property and cash
2
received by the Depositary or a Custodian in respect or in lieu of Shares, other
securities, property or cash previously received by the Depositary or Custodian
and at such time held hereunder, subject as to cash to the provisions of section
4.06.
SECTION 1.10. Dollars. The term "dollars" shall mean United States
-------
dollars.
SECTION 1.11. Foreign Exchange Contract. The term "Foreign Exchange
-------------------------
Contract" shall mean the "Chapter XXVI Agreement" among Central Bank, Citibank,
N.A. and the Company, dated as of October 15, 1993, entered into under Article
47 of the constitutional Organic Law of Banco Central de Chile and the
provisions of Chapter XXVI of the Compendium of Foreign Exchange Regulations of
Chile.
SECTION 1.12. Foreign Reqistrar. The term "Foreign Registrar" shall
-----------------
mean the Company, in its role as registrar for the Shares, or any successor as
registrar for the Shares.
SECTION 1.13. Holder. The term "Holder" shall mean the person in whose
------
name a Receipt is registered on the books of the Depositary or any register of
any Registrar maintained for such purpose.
SECTION 1.14. Principal Office. The term "Principal Office", when used
----------------
with respect to the Depositary, shall be the principal office of the Depositary,
which at the date of this Deposit Agreement is located at 111 Wall Street, 5th
Floor, New York, New York 10043.
SECTION 1.15. Receipts. The term "Receipts" shall mean the American
--------
Depositary Receipts issued hereunder evidencing American Depositary Shares. A
Receipt may evidence any number of American Depositary Shares.
SECTION 1.16. Registrar. The term "Registrar" shall mean any bank or
---------
trust company having an office in the Borough of Manhattan, The City of New
York, which shall be appointed by the Depositary, upon the request or with the
approval of the Company, to register ownership and transfer of Receipts as
herein provided, and shall include any co-registrar appointed by the Depositary,
upon the request or with the approval of the Company, for such purposes.
SECTION 1.17. Securities Act of 1933. The term "Securities Act of
----------------------
1933" shall mean the United States Securities Act of 1933, as from time to time
amended.
3
SECTION 1.18. Securities Exchange Act of 1934. The term "Securities
-------------------------------
Exchange Act of 1934" shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
SECTION 1.19. Shares. The term "Shares" shall mean common shares of the
------
Company, without nominal/par value; provided, however, that if there shall occur
any change in nominal value, a split-up or consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4.09,
an exchange or conversion in respect of the Shares of the Company, the term
"Shares" shall thereafter represent the successor securities resulting from such
change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion.
SECTION 1.20. SVS. The term "SVS" shall mean the Superintendencia de
---
Valores y Seguros of Chile.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive Receipts
------------------------------------
shall be engraved, printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Such Receipts shall be issued, dated and executed by the
Depositary by the manual or facsimile signature of a duly authorized officer of
the Depositary. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless such Receipt shall
have been executed by the Depositary by the signature of a duly authorized
officer. The Depositary shall maintain books on which each Receipt so executed
and delivered as hereinafter provided and the transfer of each such Receipt
shall be registered. Receipts shall be executed and dated by the Depositary by
the manual or facsimile signature of a duly authorized signatory of the
Depositary; provided, however, that Receipt may only be executed by the
-------- -------
Depositary by facsimile signature if a Registrar for the Receipts shall have
been appointed and such Receipts are countersigned by the manual signature of a
duly authorized signatory of the Registrar and dated by such signatory. No
Receipt shall be entitled to any benefit under this Deposit Agreement or be
valid or obligatory for any purpose, unless such Receipt shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by the facsimile signature of a duly authorized signatory
4
of the Depositary and countersigned manually by a fully authorized signatory of
the Registrar, and such execution of any Receipt by manual (and facsimile, in
case a Registrar for the Receipts (other than the Depositary) has been
appointed) signature shall be conclusive evidence, and the only evidence, that
such Receipt has been duly executed and delivered hereunder. The Depositary
shall maintain a registrar in which each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered.
Receipts bearing the manual or facsimile signature of anyone who was at the time
of signature a duly authorized signatory of the Depositary or the Registrar, as
the case may be, shall constitute adequate signature hereunder, notwithstanding
that such signatory has ceased to be so authorized prior to or after the
delivery of such Receipts. Receipts shall be in denominations of any number of
whole American Depositary Shares.
The Receipts may, upon consultation with the Company, be endorsed with
or have incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may be required by
the Depositary or required to comply with any applicable law or regulations
thereunder or with the rules and regulations of any securities exchange or
market upon which Receipts may be listed or traded or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of issuance of
the underlying Deposited Securities or otherwise.
Subject to any limitation set forth herein or in the Receipt, title to
a Receipt (and to the American Depositary Shares evidenced thereby), when such
Receipt is properly endorsed or accompanied by proper instruments of transfer,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the Holder thereof as the absolute owner
thereof for the purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
SECTION 2.02. Deposit of Shares. Shares may be deposited under this
-----------------
Deposit Agreement by delivery of (i) certificates (including the certification
referred to below) therefor to the Custodian, accompanied by any appropriate
instrument or instruments of transfer, or endorsement, in form satisfactory to
the Custodian, together with any other documents and payments required under
this Deposit Agreement, including without limitation those referred to in
Exhibit B annexed hereto, and (ii) a written order to the Custodian directing
5
the Depositary to execute and deliver to, or upon the written order of, the
person or persons stated in such order a Receipt or Receipts for the number of
American Depositary Shares representing such deposited Shares.
No Share of the Company shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary that the deposit has been
authorized by the Central Bank (unless and until the Company provides the
Depositary with evidence satisfactory to it that such authorization is no longer
necessary), and that the conditions for such authorization, as set forth in the
Foreign Investment Contract, have been satisfied.
As a condition to the deposit of Shares, the Depositary may require, at
its discretion, evidence satisfactory to the Depositary that any necessary
approval has been granted by the governmental authority or body in Chile, if
any, which is then performing the function of the regulation of currency
exchange.
If required by the Depositary, Shares presented for deposit in
accordance with this Agreement at any time shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Depositary of any dividend, or
right to subscribe for additional Shares or any other securities or to receive
other property, which any person in whose name the Shares are or have been
recorded may thereafter receive upon or in respect of such deposited Shares, or
in lieu thereof, such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
At the request, risk and expense of any holder of Shares, and for the
account of such holder, the Depositary may receive certificates for Shares to be
deposited, together with any other documents and payments required under this
Deposit Agreement, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to the Custodian of Shares pursuant to this Section
(or other Deposited Securities) in registered form, the Custodian shall as soon
as practicable obtain confirmation of the recordation of registration of
transfer of such Shares (or other Deposited Securities) in the name of the
Depositary or its nominee or the Custodian or its nominee at the cost and
expenses of the person making such deposit (or for whose benefit such deposit is
made). Deposited Securities shall be held by the Custodian for the account and
to the order of the Depositary in such manner at such place or places as the
Depositary shall determine.
6
The Custodian shall not accept for deposit Shares unless it receives
from or on behalf of the depositor of Shares a certificate satisfactory to it to
the effect that either (a) each of the following conditions has been met:
(i) the Shares were purchased with Chilean pesos received
upon conversion by the investor of U.S. dollars in the formal exchange
market;
(ii) at the time of such currency conversion, the depositor
indicated his intention to purchase Shares entitled to the benefits of
the Foreign Investment Contract;
(iii) the depositor acquired such Shares on an authorized
stock exchange in Chile;
(iv) the Shares being deposited have been registered in the
name of the Depositary or its nominee; and
(v) the investor has waived the right of access to the formal
exchange market relating to the Shares being deposited.
or (b) such Shares are being redeposited by a former Holder who
received them upon surrendering Receipts (in which case the certificate of the
Custodian referred to in Section 2.05 of this agreement shall serve as
satisfactory evidence) and that the Holder waives the right to access to the
formal exchange market relating to the Shares being redeposited.
SECTION 2.03. Execution and Delivery of Receipts. Upon the deposit of
----------------------------------
Shares pursuant to Section 2.02, together with the other documents specified
above, and if the Depositary shall so require, a proper acknowledgement or other
evidence from the Foreign Registrar satisfactory to the Depositary that the
Deposited Securities have been recorded upon the books of the Foreign Registrar
in the name of the Depositary or its nominee or a Custodian or its nominee, the
Custodian shall notify the Depositary of such deposit and recordation and the
person or persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request and risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. Upon receiving such notice from a Custodian, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver at its Principal Office to or upon the written order of the
person or persons named in the notice delivered to the Depositary, a Receipt or
Receipts, registered in the name or names requested by such person or
7
persons and evidencing in the aggregate the number of American Depositary Shares
to which such person is entitled, but only upon payment to the Depositary of the
fee of the Depositary for the issuance, execution and delivery of such Receipt
or Receipts, and of all taxes, duties and governmental charges and fees payable
in connection with such deposit and the transfer of the deposited Shares.
SECTION 2.04. Transfer of Receipts: Combination and Split-up of
-------------------------------------------------
Receipts. The Depositary, subject to the terms and conditions of this Deposit
- --------
Agreement, shall register from time to time transfers of Receipts on its
transfer books upon any surrender of a Receipt by the Holder in person or by
duly authorized attorney, 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 new Receipt or Receipts and deliver the same to
or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary upon the written request of the Company
shall, or with the written approval of the Company may, appoint one or more
co-transfer agents for the purpose of effecting transfer, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. Such co-transfer agents shall be removed and substitutes appointed
by the Depositary upon the written request, or with the written approval of, the
Company. Each co-transfer agent appointed under this Section 2.04 shall give
notice in writing to the Company and the Depositary accepting such appointment
and agreeing to be bound by the applicable terms of this Deposit Agreement. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by Holders
or persons entitled to Receipts and will be entitled to protection and indemnity
to the same extent as the Depositary. The Depositary may close the transfer
books, at any time and from time to time, when deemed expedient by it in
connection with the performance of its duties or at the request of the Company.
SECTION 2.05. Surrender of Receipts and Withdrawal of Deposited
-------------------------------------------------
Securities. Upon surrender at the Principal Office of the Depositary of a
- ----------
Receipt for the purpose of withdrawal of the Deposited Securities represented
8
thereby, and upon payment of the fee of the Depositary for the cancellation of
Receipts (as set forth on Exhibit B annexed hereto) and payment of all taxes,
duties and other governmental charges and applicable fees payable in connection
with the delivery of Deposited Securities against surrender of Receipts, and
upon delivery of any certifications required pursuant to the laws of Chile, and
subject to the terms and conditions of this Deposit Agreement, the Estatutos of
the Company and the Deposited Securities, the Holder of such Receipt shall be
entitled to delivery, to him or upon his order, of the Deposited Securities at
the time represented by such Receipt.
Delivery of Deposited Securities may be made by the delivery of
certificates, to the extent such Deposited Securities may be represented by
certificates, which, if required by law, shall be properly endorsed or
accompanied by properly executed instruments of transfer, and if such
certificates may be so registered, registered in the name of such Holder, or as
ordered by such Holder or properly endorsed or accompanied by proper instruments
of transfer. Notwithstanding any provision of this Deposit Agreement or the
Receipts, the Depositary may restrict withdrawals of Deposited Securities during
any period when the transfer books of the Depositary or the Company are closed
or if any such action is deemed necessary or advisable by the Depositary or the
Company at any time or from time to time. Notwithstanding any provision of the
Deposit Agreement to the contrary, the surrender of outstanding receipts and
withdrawal of Deposited Securities may not be suspended except for the reasons
set forth in General Instruction I.A.(1) of Form F-6 under the Securities Act of
1933.
Delivery of Deposited Securities shall be made, as hereinafter
provided, without unreasonable delay. Simultaneously with the delivery of
Deposited Securities to the Holder or its designee, the Custodian, pursuant to
the Foreign Exchange Contract, will issue or cause to be issued to the Holder or
such designee a certificate which states that the Deposited Securities have been
transferred to the Holder or its designee by the Depositary and that the
Depositary waives in favor of the Holder or its designee the right of access to
the formal foreign exchange market relating to such withdrawn Deposited
Securities.
A Receipt surrendered pursuant hereto shall be properly endorsed in
blank or accompanied by proper instruments of transfer in blank, and the Holder
thereof shall execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be
delivered to or upon the written order of the person or persons designated in
such order. Thereupon the Depositary shall direct a Custodian to deliver at the
9
office of such Custodian, subject to Sections 2.06, 3.01 and 3.02, and to the
other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities represented by
such Receipt, except that the Depositary may in its discretion make delivery to
such person or persons at the Principal Office of the Depositary of any
Deposited Securities (other than Shares) and any dividends or distributions with
respect to the Deposited Securities represented by such Receipt, or of any
proceeds of sale of any dividends, distributions or rights with respect to the
Deposited Securities, which may at the time be held by the Depositary.
At the request, risk and expense of any Holder surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct a Custodian to
forward a certificate or certificates or other appropriate evidence of title and
other proper documents of title for the Deposited Securities represented by such
Receipt 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.
For purposes of a tax ruling dated January 29, 1990 issued by the
Chilean Internal Revenue Service regarding certain tax matters relating to
American Depositary Shares and American Depositary Receipts, the acquisition
value of any Share or other Depositary Security upon its withdrawal by a Holder
upon surrender of the corresponding Receipt shall be the highest reported sales
price of such Share or other Deposited Security on the Bolsa de Comercio de
Santiago (the "Santiago Stock Exchange") on the day on which the transfer of
such Share or other Deposited Security from the Depositary to such Holder is
recorded on the books of the Foreign Registrar. In the event that the Shares or
other Deposited Securities are not then traded on the Santiago Stock Exchange,
such value shall be the highest reported sales price on the principal stock
exchange or other organized securities market in Chile on which such Shares or
other Deposited Securities are then traded. In the event that no such sales
price is reported on the day on which such transfer is recorded on the books of
the Foreign Registrar, such value shall be deemed to be the highest sale price
reported on the last day on which such sales price was reported, provided, that
if such day is more than 30 days prior to the date of such transfer, such price
shall be increased by the percentage increase over the corresponding period in
the Chilean consumer price index as reported by the pertinent governmental
authority of Chile.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and
---------------------------------------------------
Surrender of Receipts. As a condition precedent to the execution and delivery,
- ---------------------
10
registration of transfer, split-up, combination or surrender of any Receipt or
transfer or withdrawal of any Deposited Securities, the Depositary or a
Custodian may require payment from the presenter of the Receipt, or the
depositor of the Shares, of a sum sufficient to reimburse it for any tax or
other governmental charge (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and any stock transfer or registration
fee with respect thereto and payment of any applicable fees as herein provided,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and compliance with any regulations the Depositary
and the Company may establish consistent with the provisions of this Deposit
Agreement, including, without limitation, this Section 2.06 and may also require
compliance with any laws or governmental regulations relating to American
depositary receipts or to the withdrawal of Deposited Securities.
After consultation with the Company, the delivery of Receipts against
deposits of particular Shares may be withheld, or the delivery of Receipts
against the deposit of Shares generally may be suspended, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Company are closed, or if any such
action is deemed, in good faith, necessary or advisable by the Depositary or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental authority, body or commission, or under any
provision of this Deposit Agreement. The surrender of outstanding Receipts and
withdrawal of Deposited Securities may not be suspended, accept as required in
connection with (i) temporary delays caused by closing the transfer books of the
Depositary or the Company (or the appointed agent for the Company for the
transfer and registration of Shares) or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares required to be registered under the provisions of the Securities Act
of 1933 prior to being offered and sold publicly in the United States, unless a
registration statement is in effect as to such Shares. The Depositary shall
comply with written instructions of the Company not to accept for deposit under
the Deposit Agreement any Shares identified in such instructions at such times
and under such circumstances as may reasonably be specified in such instructions
in order to facilitate the Company's compliance with securities laws in the
United States or Chile.
11
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
------------------
mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a
new Receipt of like tenor, in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed or lost or stolen Receipt, upon the Holder thereof filing with the
Depositary (a) a request for such exchange and delivery before the Depositary
has notice that the Receipt has been acquired by a bona fide purchaser and (b) a
sufficient indemnity bond, and satisfying any other reasonable requirements
imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts. All
----------------------------------------------------
Receipts surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
person presenting Shares for deposit or any Holder of a Receipt may be required
from time to time to file such proof of citizenship or residence, exchange
control approval, payment of all applicable Chilean taxes or other governmental
charges, legal or beneficial ownership, or such information relating to the
registration on the books of the Company or the Registrar, if applicable, of the
Shares presented for deposit or other information, to execute and deliver such
certificates and to make such representations and warranties, as the Depositary
may deem necessary or proper or as the Company reasonably may require by written
request to the Depositary and the Custodian. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or other distribution of rights or the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed, or such certificates are executed or such representations and warranties
are made. The Depositary shall provide the Company, in a timely manner, with
copies of any such proofs of citizenship or residence, exchange control
approval, legal or beneficial ownership or other information referred to above
which it receives.
SECTION 3.02. Liability of Holder for Taxes. If any tax or other
-----------------------------
governmental charge shall become payable by the Custodian or the Depositary or
its nominee with respect to any Deposited Securities evidenced by any Receipt,
such tax or other governmental charge shall be payable by the Holder of such
12
Receipt to the Depositary. The Depositary may refuse to effect any transfer,
split-up or combination of such Receipt or any withdrawal of Deposited
Securities evidenced thereby until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Holder
thereof any part or all of the Deposited Securities evidenced by such Receipt,
and may apply such dividends or other distributions or the proceeds of any such
sale in payment of such tax or other governmental charge, the Holder of such
Receipt remaining liable for any deficiency.
SECTION 3.03. Warranties on Deposit of Shares. Every person depositing
-------------------------------
Shares under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Shares are validly issued, fully paid and non-assessable and
free of any preemptive rights, and that the person making such deposit is duly
authorized so to do. Every such person shall also be deemed to represent that
the deposit of Shares or sale of Receipts by that person is not restricted under
the Securities Act of 1933. Such representations and warranties shall survive
the deposit of Shares and issuance of Receipts in respect thereof.
SECTION 3.04. Disclosure of Interests. To the extent that provisions of
-----------------------
or governing any Deposited Securities may require the disclosure of beneficial
or other ownership of Deposited Securities, other Shares and other securities to
the Company and may provide for blocking transfer and voting or other rights to
enforce such disclosure or limit such ownership, the Depositary shall use its
reasonable efforts to comply with Company instructions as to Receipts in respect
of any such enforcement or limitation and Holders shall comply with all such
disclosure requirements and ownership limitations and shall cooperate with the
Depositary's compliance with such Company instructions.
SECTION 3.05. Compliance with Chilean Law. Pursuant to a Circular
---------------------------
Letter of the SVS dated June 28, 1990, Holders are deemed, for certain purposes
of Chilean law, to be treated as holders of Deposited Securities. Accordingly,
Holders shall, as a matter of Chilean law, be obligated to comply with the
requirements of Articles 12 and 54 and Title XV of Law 18,045 of Chile. Article
12 requires that, among other things, Holders report to the SVS and the stock
exchanges in Chile on which the Shares are listed:
(a) any direct or indirect acquisition or sale of Receipts that
results in the Holder acquiring or disposing of, directly or
indirectly, the right to own 10% or more of the total share
capital of the Company; and
13
(b) any direct or indirect acquisition or sale of Receipts or
options to buy or sell Receipts, in any amount, made by (i) a
Holder that owns Receipts representing 10% or more of the
Shares or (ii) a director, general manager or manager of the
Company.
Article 54 requires that, among other things, any Holder intending to acquire
control, directly or indirectly (as defined in Title XV of Law 18,045) of the
Company (a) publish a notice of such intention in a newspaper in Chile
disclosing the price and terms of any such acquisition at least five days prior
to the actual acquisition and (b) send a written notice of such intention to the
SVS and the stock exchanges in Chile on which the Shares are listed prior to
such publication.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.01. Power of Attorney. Each Holder, upon acceptance of a
-----------------
Receipt issued in accordance with the terms hereof, thereby acknowledges the
right of the Depositary, with power to delegate, to take any and all steps or
action provided for or contemplated herein with respect to the Deposited
Securities, including but not limited to those set forth in Article IV, and to
take such further steps or action as the Depositary in its sole discretion may
deem necessary or appropriate to carry out the purposes of this Deposit
Agreement.
SECTION 4.02. Cash Distributions; Withholding. Whenever the Custodian
-------------------------------
or Depositary shall receive any cash dividend or other cash distribution by the
Company on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.06, convert or cause to be converted such dividend or
distribution into dollars and shall distribute the amount thus received to the
Holders of Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Company or its
-------- -------
agent, the Depositary or a Custodian shall be required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, the amount distributed to
the Holders of Receipts for American Depositary Shares representing such
Deposited Securities shall be reduced accordingly provided, however, that the
-------- -------
Depositary shall make appropriate adjustments in the amounts so distributed in
respect of (a) any such Deposited Securities being not entitled, by reason of
date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) withheld or required to be withheld by the
14
Company, the Custodian or the Depositary from any such distribution pursuant to
Section 3.02 or otherwise on account of taxes or other governmental charges, or
(ii) charged by the Depositary in the conversion of foreign currency into
Dollars pursuant to Section 4.05. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder of a
Receipt a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to the Holders of Receipts then outstanding. The company or its
agent will remit to the appropriate governmental authority or agency in Chile
all amounts required to be withheld and owing to such authority or agency by the
Company. The Depositary or its agent will remit to the appropriate government
authority or agency in Chile all amounts required to be withheld by the
Depositary. The Depositary will forward to the Company such information from its
records as the Company may reasonably request to enable the Company to file
necessary reports with governmental authorities or agencies, and either the
Depositary, a Custodian or the Company or its agent, as appropriate, may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Holders of Receipts.
SECTION 4.03. Distributions Other Than Cash or Shares. Whenever the
---------------------------------------
Custodian or Depositary shall receive any distribution other than cash, rights
or Shares upon any Deposited Securities, the Depositary shall, after
consultation with the Company to the extent practicable, cause the securities or
property received by such Custodian to be distributed to the Holders of Receipts
entitled thereto after deduction or upon payment of the expenses of the
Depositary, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary, with the consent of the Company, deems equitable and
practicable for accomplishing such distribution; provided, however, that if in
-------- -------
the opinion of the Depositary such distribution cannot be made proportionately
among the Holders of Receipts entitled thereto, or if for any other reason
(including but not limited to any requirement that the Company or the Depositary
withhold an amount on account of taxes or other governmental charges or that
such securities must be registered under the Securities Act in order to be
distributed to the Holders) the Depositary deems such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale, at such place or
places and upon such terms as it may deem proper) of the securities or property
15
thus received, or any part thereof, and, in such case, the net proceeds of any
such sale shall be distributed by the Depositary to the Holders of Receipts
entitled thereto as in the case of a distribution received in cash.
SECTION 4.04. Distributions in Shares. Subject to the last sentence of
-----------------------
this Section 4.04, if any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary may, and shall,
if the Company so requests, distribute to the Holders of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the number of Shares received as such dividend or free distribution
subject to the terms and conditions of the Deposit Agreement with respect to the
deposit of Shares and the issuance of American Depositary Shares evidenced by
Receipts, including the withholding of any tax or other governmental charge as
provided in Section 4.11. The Depositary will not issue fractional American
Depositary Shares. In lieu of issuing Receipts for fractional American
Depositary Shares in any such case, the Depositary will sell the number of
Shares represented by the aggregate of such fractions and distribute the net
proceeds to Holders, all in the manner and subject to the conditions described
in Section 4.02. If additional Receipts are not so distributed (except as
pursuant to the preceding sentence), each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. Notwithstanding the foregoing, in the event that
the Depositary determines that a distribution in Shares may not legally be made
to some or all Holders, whether directly or as provided in the preceding
sentence, the Depositary may sell such Shares and remit the proceeds thereof to
the Holders entitled thereto as in the case of a distribution in cash.
SECTION 4.05. Rights. In the event that the Company shall offer or
------
cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other nature, the
Depositary, after consultation with the Company, shall have discretion as to the
procedure to be followed in making such rights available to the Holders of
Receipts or in disposing of such rights on behalf of such Holders and making the
net proceeds available in dollars to such Holders; provided, however, that the
Depositary will, if requested by the Company, take action as follows:
(i) if at the time of the offering of any rights the
Depositary determines that it is lawful and feasible to make such
16
rights available to Holders of Receipts by means of warrants or
otherwise, the Depositary shall, after payment of all fees and expenses
of the Depositary, distribute warrants or other instruments therefor in
such form as it may determine to the Holders entitled thereto, in
proportion to the number of American Depositary Shares representing
such Deposited Securities, or employ such other method as it may deem
feasible in order to facilitate the exercise, sale or transfer of
rights by such Holders; or
(ii) if at the time of the offering of any rights the Depositary
determines that it is not lawful or not feasible to make such rights
available to Holders of Receipts by means of warrants or otherwise, or
if the rights represented by such warrants or such other instruments
are not exercised and appear to be about to lapse, the Depositary in
its discretion may sell such rights or such warrants or other
instruments at public or private sale, at such place or places and upon
such terms as it may deem proper, and may allocate the proceeds (net of
all fees and expenses of the Depositary) of any such sale for the
accounts of the Holders of Receipts otherwise entitled to such rights,
warrants or other instruments, upon an averaged or other practicable
basis without regard to any distinctions among such Holders because of
the application of exchange restrictions with regard to a particular
Holder, or the date of delivery of any Receipt or Receipts, or
otherwise or, if by the terms of such rights offering or for any other
reason, the Depositary may not either make such rights available to any
Holders or dispose of such rights and make the net proceeds available
to such Holders, then the Depositary shall allow the rights to lapse.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Holders, then upon instruction pursuant to such
warrants or other instruments to the Depositary from such Holder to exercise
such rights, upon payment by such Holder to the Depositary for the account of
such Holder of any amount equal to the purchase price of the Shares to be
received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments or as may be requested by the Company to the Depositary in writing,
the Depositary shall, on behalf of such Holder, exercise the rights and purchase
the Shares, and the Company shall, upon receipt of payment of any charges
requested as above, cause the Shares so purchased to be delivered to the
Depositary on behalf of such Holder. The Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of this Deposit Agreement,
and shall, pursuant to Section 2.03 of this Deposit Agreement, execute and
17
deliver Receipts to such owner. In the case of a distribution pursuant to this
section, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
If registration under the Securities Act of 1933 of the securities to
which any rights relate is required in order for the Company to offer such
rights to Holders of Receipts and to sell the securities represented by such
rights, the Depositary will not offer such rights to the Holders of Receipts in
the United States or to any U.S. person (each as defined in Regulation S under
the Securities Act of 1933) unless and until such a registration statement is in
effect, or unless the offering and sale of such securities to the Holders of
such Receipts are exempt from registration under the provisions of such Act;
provided that nothing in this Deposit Agreement shall create, or shall be
construed to create, any obligation on the part of the Company to file such a
registration statement or to endeavor to have such a registration statement
declared effective.
SECTION 4.06. Conversion of Foreign Currency. Whenever the Depositary
------------------------------
or the Custodian shall receive foreign currency by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof such currency so received can
in the judgment of the Depositary be converted on a reasonable basis into
dollars and the resulting dollars transferred to the United States, the
Depositary shall subject to the Foreign Exchange Contract and of any
requirements of Chilean law or regulations in effect from time to time, convert
or cause to be converted, by sale or in any other manner that it may determine,
such currency into dollars, and such dollars shall be distributed to the Holders
of Receipts entitled thereto (net of the expenses of the Depositary in respect
of such conversion) or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution to the Holders may be made upon an averaged or
other practicable basis without regard to any distinctions among such Holders
because of the application of exchange restrictions with regard to a particular
Holder or otherwise or the date of delivery and without liability for interest.
The Depositary shall exercise its rights under the Foreign Exchange
Contract as and to the extent appropriate in order to effect such conversions
and distributions, and is authorized to give such certifications, and enter into
such agreements and arrangements as may be necessary or convenient thereunder or
18
in connection therewith, provided, however, that the Depositary shall not be
obligated to incur any material expense in connection therewith or to take any
action that would subject it to any expense, liability or civil or criminal
penalty or sanction or civil or criminal preceding, unless satisfactory
indemnity is furnished with respect thereto.
If such conversion or distribution to the Holders can be effected only
with the approval or license of any government or agency thereof, the Depositary
shall file such application for approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall determine that, in its judgment,
any currency other than dollars received by the Depositary or the Custodian is
not convertible on a reasonable basis into dollars transferable to the United
States, or if the Foreign Exchange Contract shall cease to be in effect or the
rights of the Depositary thereunder shall be restricted or suspended, or if any
approval or license of any governmental authority or agency thereof which is
required for such conversion is denied or, in the opinion of the Depositary, is
not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
such currency (or an appropriate document evidencing the right to receive such
currency) received by the Depositary to, or, in its discretion, may hold such
currency (without liability for interest) for the respective accounts of, the
Holders of Receipts entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution in dollars to some Holders of Receipts entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in dollars to the extent permissible to the Holders of Receipts for
whom such conversion and distribution is practicable and may distribute the
balance of such currency received by the Depositary to, or hold such balance for
the account of (without liability for interest), the Holders of Receipts for
whom such conversion and distribution is not practicable.
SECTION 4.07. Fixing of Record Date. Whenever any cash dividend or
---------------------
other cash distribution shall become payable or any distribution other than cash
shall be made, or rights shall be issued with respect to Shares, or whenever for
any reason the Depositary causes a change in the number of Shares that are
represented by ADSs, or whenever the Depositary shall receive notice of any
meeting of holders of Shares or other Deposited Securities, the Company shall
promptly notify the Depositary of the recorded date in respect thereof and the
19
Depositary shall fix a record date (which to the extent practicable shall be the
same record date set by the Company) for the determination of the Holders of
Receipts who shall be entitled to receive such dividend, distribution or rights,
or the net proceeds of the sale thereof or to exercise any voting rights at such
meeting. Subject to the provisions of Sections 4.01 through 4.06 and to the
other terms and conditions of this Deposit Agreement, the Holders of Receipts on
such record date shall be entitled to receive the amount distributable by the
Depositary with respect to such dividend, distribution or rights or the net
proceeds of sale thereof in proportion to the number of American Depositary
Shares held by them respectively and to give voting instructions and to act in
respect of any other such matter.
SECTION 4.08. Voting of Deposited Securities. As soon as practicable
------------------------------
after receipt of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall mail to
Holders a notice containing (a) such information as is contained in the
solicitation materials, if any, and (b) a statement that each Holder at the
close of business on the record date specified in Section 4.07 will be entitled,
subject to the provisions of or governing Deposited Securities (including,
without limitation, any applicable provision of Chilean law and of the Estatutos
of the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by the
American Depositary Shares evidenced by such Holders' Receipts. Upon the written
request of a Holder on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor
insofar as practicable and permitted under the provisions of or governing
Deposited Securities to vote or cause to be voted (or to grant a discretionary
proxy to a person designated by the Company to vote) the Deposited Securities
presented by the American Depositary Shares evidenced by such Holder's Receipts
in accordance with any instructions set forth in such request. The Depositary
agrees not to, and shall instruct the Custodian and each of its nominees, if
any, not to, vote the Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by an American Depositary Receipt other
than in accordance with such written instructions from the Holders. The
Depositary shall not itself exercise any voting discretion over any Deposited
Securities. If no voting instructions are received by the Depositary from any
Holder with respect to the Deposited Securities represented by the American
Depositary Shares evidenced by such Holder's Receipts on or before the date
established by the Depositary for such purpose, such Holder shall be deemed, and
the Depositary shall deem such Holder, to have instructed the Depositary to give
a discretionary proxy with full power of substitution, to the Chairman of the
20
Board or to a person designated by him, to vote the Deposited Securities on any
matters other than contested matters (it being understood that an election of
Directors at an annual or extraordinary meeting of shareholders is not a
contested matter) matters that may affect substantially the rights or privileges
attributable to the Deposited Securities represented by the American Depositary
Shares evidenced by such Holder's Receipts, and the Depositary shall give a
discretionary proxy with full power of substitution to the Chairman of the Board
or to a person designated by him to vote the Deposited Securities on any such
matters, provided that no such instruction shall be deemed and no such
discretionary proxy shall be given with respect to any matter as to which the
Chairman of the Board directs the Depositary that he does not wish such proxy to
be given. No such proxy shall continue in effect beyond 5 P.M., Santiago Time,
on the penultimate day of any calendar month.
SECTION 4.09. Changes Affecting Deposited securities. Upon any change
--------------------------------------
in nominal value, split-up, consolidation or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the y Depositary or a Custodian in
exchange for, or in conversion of, or in respect of, Deposited Securities shall
be treated as new Deposited Securities under this Deposit Agreement, and
American Depositary Shares shall thenceforth represent the new Deposited
Securities so received in exchange or conversion, unless additional or new
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.10. Available Information. The Company is subject to the
---------------------
periodic reporting requirements of the Securities Exchange Act of 1934 and,
accordingly, files certain reports with the Commission. These public reports can
be inspected by Holders and copied at the public reference facilities maintained
by the Commission located at the date of the Deposit Agreement at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
SECTION 4.11. Reports. The Depositary shall make available for
-------
inspection by the Holders of Receipts at its Principal Office any reports and
communications received from the Company which are both (a) received by the
Depositary, the Custodian or 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 Depositary shall also send to Holders
21
of Receipts copies of such reports when furnished by the Company pursuant to
Section 5.06.
The Depositary shall also furnish to the commission, with a copy to the
Company, semi-annually, beginning on or before six months after the effective
date of the registration statement filed with the commission under the
Securities Act of 1933 relating to the Receipts, the following information in
tabular form
(1) the number of American Depositary Shares evidenced by
Receipts issued during the period covered by the report;
(2) the number of American Depositary Shares evidenced by
Receipts retired during the period covered by the report;
(3) the total amount of American Depositary Shares evidenced
by Receipts remaining outstanding at the end of the six-month period;
and
(4) the total number of the Holders of Receipts at the end of
the six-month period.
The Depositary shall also furnish the Commission with the name of each
dealer known to the Depositary depositing Shares against issuance of Receipts
during the period covered by the report. The Company shall furnish the
Depositary with the names of each such dealer known to the Company, and the
Depositary shall include in its report the names of such dealer or dealers which
are supplied by the Company.
SECTION 4.12. Lists of Receipt Holders. Promptly upon request by the
------------------------
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names Receipts are registered on the books of the Depositary.
SECTION 4.13. Taxation. Notwithstanding any other provision of this
--------
Deposit Agreement, in the event that the Depositary determines that any
distribution in property (including Shares or rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or other governmental charge, including by public or private sale, at such
place or places and upon such terms as it may deem proper, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
22
property after deduction of such taxes or governmental charges and any
applicable expenses of the Depositary to the Holders of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the
-----------------------------------------------
Depositary. Until termination of this Deposit Agreement in accordance with its
- ----------
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers, and surrender, of Receipts in accordance with the provisions of
this Deposit Agreement.
The Depositary shall keep books in such New York City facilities for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Holders of Receipts and the Company,
provided that such inspection shall not be for the purpose of communicating with
the Holders of Receipts in the interest of a business or object other than the
business of the Company or a matter related to this Deposit Agreement or the
Receipts. The Depositary shall deliver or cause to be delivered to the Company
at the address specified in section 7.05 a copy of such register at the end of
each calendar quarter in such manner as shall permit the Company to present such
copy to the SVS in accordance with applicable Chilean law. At the written
request of the Company, the Company shall have the right to (i) inspect transfer
and registration records of the Depositary or its agent and take copies thereof
and (ii) require the Depositary or its agent, the Registrar and any co-transfer
agents or co-registrars to supply promptly copies of such portions of such
records as the Company may reasonably request. The Depositary shall also deliver
or cause to be delivered to the Company at the address specified in Section 7.05
within 10 business days after the end of each month a record of the transfers of
Receipts during such month, including the number of Receipts transferred, the
names of the Transferors and transferees and the domiciles of the transferees.
The Depositary, after consultation with the Company, may close the
transfer books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
23
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, at the request of or
with the approval of the Company, appoint a Registrar or one or more
co-registrars for registry of such Receipts in accordance with any requirements
of such exchange or exchanges or system or systems. Such Registrar or
co-registrars may be removed and a substitute appointed by the Depositary upon
the request or with the approval of the Company.
SECTION 5.02. Prevention or Delay in Performance by the Depositary or
-------------------------------------------------------
the Company. Neither the Depositary nor the Company shall incur any liability to
- -----------
any Holder of any Receipt if, by reason of any provision of any present or
future law of the United States or Chile or any other country, or of any other
governmental authority (including any action by the Central Bank under the
Foreign Exchange Contract), or by reason of any provision, present or future, of
the Foreign Exchange Contract and or the Estatutos of the Company or the
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control, the Depositary or the Company shall be
prevented or forbidden from, or be subject to any civil or criminal penalty on
account of, or delayed in, doing or performing any act or thing which by the
terms of this Deposit Agreement or the Foreign Exchange Contract it is provided
shall be done or performed or the Depositary or the Company shall be obligated
to do or perform any act which obligation is inconsistent with the provisions of
this Deposit Agreement; nor shall the Depositary or the Company incur any
liability to any Holder of a Receipt by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which by the terms
of this Deposit Agreement it is provided shall or may be done or performed, or
by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the Custodian and the
----------------------------------------------------
Company. The Company assumes no obligation nor shall it be subject to any
- -------
liability under this Deposit Agreement to Holders of Receipts, except that it
agrees to use its best judgment and good faith in the performance of its
obligations set forth in this Deposit Agreement.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to the Holders of Receipts (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities) other than that it agrees to perform its obligations as
set forth in this Deposit Agreement without negligence or bad faith.
24
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required, and
no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of a Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action
or inaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder of a
Receipt, or any other person believed by it in good faith to be competent to
give such
advice or information.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or failure to act is in good faith.
Subject to the laws of Chile and the Estatutos of the Company, the
Depositary may own and deal in any class of securities of the Company and its
affiliates and in Receipts.
No disclaimer of liability under the Securities Act of 1933 is intended
by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary Appointment of
--------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary
- --------------------
hereunder upon 90 days written notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company upon 90 days
written notice of such removal effective upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder and a new Chapter XXVI Agreement
25
among the Central Bank, the Company and such successor depositary, and thereupon
such successor depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor;
but such predecessor, nevertheless, upon payment of all sums due it and on the
written request of the Company shall execute and deliver an instrument
transferring to such successor all rights and powers of such predecessor
hereunder, shall duly assign, transfer and deliver all right, title and interest
in the Deposited Securities to such successor, and shall deliver to such
successor a list of the Holders of all outstanding Receipts and such other books
and records maintained by such predecessor with respect to its function as
Depositary hereunder. Any such successor depositary shall promptly mail notice
of its appointment to the Holders of Receipts. The Depositary agrees that it
will, after the appointment of any successor depositary, continue to cooperate
with the Company and such successor depositary to arrange for the execution of
an amendment to or a replacement of the Foreign Exchange Contract, and the
Depositary shall be reimbursed for its reasonable out of pocket expenses in
connection therewith.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05. The Custodian. The Depositary has initially appointed
-------------
Banco de Chile as custodians and agents of the Depositary for the purpose of
this Deposit Agreement. A Custodian in acting hereunder shall be subject at all
times and in all respects to the directions of the Depositary and shall be
responsible solely to it. Any Custodian may resign and be discharged from its
duties hereunder by notice of such resignation delivered to the Depositary at
least 30 days prior to the date on which such resignation is to become
effective. If upon such resignation there shall be no Custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint
a substitute custodian or custodians, which shall thereafter be the Custodian
hereunder. Whenever the Depositary in its discretion determines that it is in
the best interest of the Holders of Receipts to do so, it may appoint a
substitute custodian, which shall thereafter be the Custodian hereunder, and
upon demand of the Depositary the predecessor custodian shall deliver the
Deposited Securities held by it to such substitute custodian and such other
books and records maintained by such predecessor with respect to its function
as the Custodian hereunder. Each such substitute custodian shall deliver to the
Depositary and the Company, forthwith upon its appointment, an acceptance of
such appointment satisfactory in form and substance to the Depositary.
26
Immediately upon any such change, the Depositary shall give notice thereof in
writing to the Company and all Holders of Receipts.
Upon the appointment of any successor depositary hereunder, any
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of any
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06. Notices and Reports. Upon the giving of notice by the
-------------------
Company, by publication or otherwise, of any meeting of holders of Shares or
other Deposited Securities, or of any adjourned meeting of such holders, or of
the taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company agrees to
transmit to the Depositary and to each Custodian a copy of the notice thereof in
the form given to holders of such Shares or other Deposited Securities. The
Company shall, at its expense, also arrange for the translation into English, if
not already in English, to the extent required pursuant to any regulations of
the Commission and for the prompt transmittal to the Depositary of sufficient
copies of such notices and of any other notices, reports and communications
which are generally made available by the Company to holders of Shares
(including, without limitation, the Company's annual report to shareholders
containing audited annual financial statements).
The Depositary will, at the Company's expense, arrange for the prompt
transmittal by any Custodian to the Depositary of such notices and any other
reports and communications which are made generally available by the Company to
holders of its Shares, and arrange for the mailing, at the Company's expense, of
copies thereof to all Holders of Receipts.
SECTION 5.07. Issuance of Additional Shares, Etc. In the event of any
----------------------------------
issuance of additional Shares or of other securities (including rights and
convertible or exchangeable securities) as a dividend or distribution with
respect to the Shares or other Deposited Securities evidenced by Receipts to the
holders of Shares, the Company agrees that with respect to such issuance to
Holders, the Company will forward to the Depositary written instructions as to
the manner in which the Depositary is to effect actual delivery and, after the
Depositary has received the advice of its counsel and upon the Depositary's
27
reasonable request, the Company will promptly furnish to the Depositary a
written opinion from counsel for the Company in the United States to the effect
that such dividend or distribution will not violate the Securities Act of 1933.
The Depositary will comply with written instructions of the Company not
to accept for deposit hereunder any Shares identified in such instructions at
such times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Shares, either
upon original issuance or upon a sale of Shares previously issued and reacquired
by the Company or by any company under its control unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933 or
unless the offering and sale of such Shares is exempt from registration under
the provisions of such Act or the transaction is exempt under such Act. In the
event that the Company relies upon an exemption, the Company agrees that it will
provide the Depositary with a written statement as to the exemption upon which
the Company so relies and, if the Depositary reasonably requests, the Company
will furnish to the Depositary a written opinion of counsel to the effect that
the offering and sale of such Shares is exempt from registration under the
provisions of the Securities Act of 1933. Neither the Depositary or the Company
shall be obligated to file a registration statement for such Shares pursuant to
the Securities Act of 1933. In such case, Holders would not be permitted to
purchase such Shares.
SECTION 5.08. Indemnification. The Company agrees to indemnify the
---------------
Depositary and any Custodian against, and hold each of them harmless from, any
liability or expense which may arise (a) out of acts performed or omitted in
accordance with the provisions of this Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or a Custodian, except for any liability or expense
arising out of the negligence or bad faith of either of them or (b) out of or in
connection with any offer or sale of Receipts, American Depositary Shares or
other Deposited Securities or any prospectus or registration statement under the
Security Act of 1933 in respect thereof, except to the extent that such
liability or expense arises out of information relating to the Depositary or the
Custodian, as applicable, furnished in writing to the Company by the Depositary
or Custodian, as applicable, expressly for use in any registration statement,
proxy statement, prospectus (or placement memorandum) or preliminary Prospectus
28
(or preliminary placement memorandum) relating to the Shares represented by the
American Depositary Shares, or omissions of such information or (ii) by the
Company or any of its agents.
The Depositary agrees to indemnify the Company and hold it harmless
from any liability which may arise out of acts performed or omitted by the
Depositary due to the negligence or bad faith of the Depositary.
If any action or claim shall be brought or threatened to be brought
against any party in respect of which indemnity may be sought pursuant to
Section 5.08 (the "indemnified party"), the indemnified party shall, as soon as
practicable (or, in the case of any action or claim which is threatened to be
brought, as soon as practicable after such party becomes aware of the same),
notify the party against whom indemnity may be sought (the "indemnifying party")
in writing of such action or claim, and the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party; provided,
--------
however, that the indemnifying party shall not be entitled to assume such
- -------
defense if the indemnified party reasonably objects on the ground that there may
be legal defenses available to it which are different from or in addition to
those available to the indemnifying party; in such circumstances, and also in
the event of any action or claim being brought or threatened to be brought
against any of the parties hereto, the other parties hereto shall provide, to
the party against whom such action or claim is brought or threatened to be
brought, such information and assistance as such party shall reasonably request,
subject always to the provisions of the indemnity contained in Section 5.08.
Each party shall to the extent reasonable and practicable in all circumstances
consult with each of the other parties as and when reasonably requested by such
party in respect of any action or claim referred to in Section 5.08. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, unless the indemnified objects
within a reasonable period as provided above, the indemnifying party shall not
be liable to the indemnified party for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof other
than reasonable costs of investigation. In no event shall the indemnifying
party, in connection with any one such proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for fees and
expenses of more than one counsel for the indemnified party (in addition to one
29
local counsel in each such jurisdiction). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld.
The obligations set forth in Section 5.08 shall survive the termination
of this Deposit Agreement and the succession or substitution of any indemnified
person.
SECTION 5.09. Charges of Depositary. The Company agrees to pay all
---------------------
charges and out-of-pocket expenses of the Depositary as shown in Exhibit B
annexed hereto, and those of the Foreign Registrar, in each case other than (1)
the fees of the Depositary for the execution and delivery of Receipts pursuant
to Section 2.03 and the surrender of Receipts pursuant to Section 2.05, (2)
taxes and other governmental charges, (3) such fees as may from time to time be
in effect for the registration, exchange or transfer of Shares generally on the
share register of the Company and accordingly applicable to transfers of Shares
to the name of the Depositary or its nominee or a Custodian or its nominee on
the making of deposits hereunder, (4) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement to be
at the expense of persons depositing Shares or Holders of Receipts, (5) such
expenses as are incurred by the Depositary in the conversion of foreign currency
pursuant to Section 4.06 and (6) overhead expense (including, without
limitation, salaries and benefits of employees) incident to the administration
in the ordinary course of this Deposit Agreement. Any other charges and expenses
of the Depositary hereunder will be paid by the Company after consultation and
agreement between the Depositary and the Company as to the amount and nature of
such charges and expenses. Such charges may at any time and from time to time be
changed by agreement between the Company and the Depositary. The Depositary
shall present its statement for such charges and expenses to the Company once
every three months. The charges and expenses of any Custodian hereunder are for
the sole account of the Depositary.
SECTION 5.10. Certain Rights of the Depositary; Limitations. Subject to
----------------------------------------------
the further terms and provisions of this Section 5.10, the Depositary and its
agents may own and deal in any class of securities of the Company and its
affiliates and in Receipts. The Depositary may issue Receipts against evidence
of rights to receive Shares from the Company, or any custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished on behalf of the holder thereof. The Depositary shall not lend Shares
or Receipts; provided, however, that the Depositary reserves the right to (i)
30
issue Receipts prior to the receipt of Shares pursuant to Section 2.02 and (ii)
deliver shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.05, including Receipts which were issued under (i) above but for which
Shares may not have been received. The Depositary may receive Receipts in lieu
of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such transaction shall be (a) accompanied by (x) a written
representation by the person or entity (the "Applicant") to whom Receipts are
issued or Shares delivered that at the time the Depositary issues such Receipts
or delivers such Shares, the Applicant or its customer owns the Shares or
Receipts to be delivered to the Depositary, or (y) such evidence of ownership of
Shares or Receipts as the Depositary deems appropriate, (b) subject to a written
representation by the Applicant that it will hold such Shares or Receipts in
trust for the Depositary until their delivery to the Depositary or custodian,
reflect on its records the Depositary as owner of such Shares or Receipts and
deliver such Shares upon the Depositary's request, (c) at all times fully
collateralized (marked to market daily) with cash, United States government
securities, or other collateral of comparable safety and liquidity, (d)
terminable by the Depositary on not more than five (5) business days' notice,
and (e) subject to such further indemnities and credit regulations as the
Depositary deems appropriate. The Depositary intends that the number of Receipts
issued by it under (i) above and outstanding at any time, generally will not
exceed thirty percent (30%) of the Receipts issued by the Depositary and with
respect to which Shares are on deposit with the Depositary or custodian;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as the Depositary deems appropriate. The Depositary
shall also set limits with respect to the number of Receipts and shares involved
in transactions to be effected hereunder with any one person on a case by case
basis as it deems appropriate.
Collateral provided by an Applicant for Receipts or Shares, but not the
earnings thereon, shall be held for the benefit of the Holder. The Depositary
may retain for its own account any compensation received by it in connection
with the foregoing, including without limitation earnings on the collateral.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions of
---------
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable. Any amendment which shall impose or increase any
31
fees or charges (other than the fees of the Depositary for the issuance,
execution and delivery or cancellation of Receipts and taxes and other
governmental charges), or which shall otherwise prejudice any substantial
existing right of Holders of Receipts, shall, however, not become effective as
to outstanding Receipts until the expiration of 60 days after the Depositary
shall have given a notice of amendment of this Deposit Agreement to the Holders
of outstanding Receipts. Every Holder of a Receipt at the time any amendment of
this Deposit Agreement so becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. Except in order to comply with mandatory
provision of any applicable laws, in no event shall any amendment impair the
right of the Holder of any Receipt to surrender such Receipt and receive
therefor the Deposited Securities represented thereby.
SECTION 6.02. Termination. The Depositary shall at any time at the
-----------
direction of the Company terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 60
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate this Deposit Agreement if at any time 60 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04 within such
60 days. If any Receipts shall remain outstanding after the date of termination,
the Depositary thereafter shall discontinue the registration of transfers of
Receipts, shall suspend the distribution of dividends to the Holders thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary. At any
time after the expiration of six months from the date of termination, the
Depositary may sell at public or private sale, at such place or places and upon
such terms as it may deem proper, the Deposited Securities then held hereunder
and may thereafter hold the net proceeds of any such sale, together with any
other cash then held by it hereunder, without liability for interest in an
unsegregated escrow account, for the pro rata benefit of the Holders of Receipts
which have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
32
Agreement, except to account for such net proceeds and other cash. Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in
------------
any number of counterparts, each of which shall be deemed an original, and all
of such counterparts shall constitute one and the same instrument. Copies of
this Deposit Agreement shall be filed with the Depositary and any Custodian
hereunder and shall be open to inspection by any Holder of a Receipt during
business hours.
SECTION 7.02. No Third Party Beneficiaries. This Deposit Agreement is
----------------------------
for the exclusive benefit of the parties hereto and shall not be deemed to give
any legal or equitable right, remedy or claim whatsoever to any other person.
SECTION 7.03. Severability. In case any one or more of the provisions
------------
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no wise be affected, prejudiced or disturbed thereby.
SECTION 7.04. Holders Parties; Binding Effect. The Holders of Receipts
-------------------------------
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance
thereof.
SECTION 7.05. Notices. Any and all notices to be given to the Company
-------
shall be deemed to have been duly given if personally delivered or sent by mail
or cable, telex or facsimile transmission confirmed by letter, addressed to
Santo Domingo 789, Santiago de Chile, Chile, or at such other place which the
Company may designate by giving notice thereof in writing to the Depositary and
the Custodian.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Citibank, N.A., 111
Wall Street, 5th Floor, New York, New York 10043, Attention: ADR Department, or
33
any other place to which the Depositary may have transferred its Principal
Office and given notice thereof.
Any and all notices to be given to any Holder of a Receipt shall be
deemed to have been duly given if personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to such Holder at
the address of such Holder as it appears on the transfer books for Receipts of
the Depositary, or, if such Holder shall have filed with the Depositary a
written request that notices intended for such Holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it from the other or from any Holder
of a Receipt, notwithstanding that such cable, telex or facsimile transmission
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.06. Governing Law. This Deposit Agreement and the Receipts
-------------
shall be interpreted and all rights hereunder and thereunder and provisions
hereof and thereof shall be governed by the laws of the State of New York.
SECTION 7.07. Compliance with U.S. Securities Laws. Notwithstanding
------------------------------------
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under this
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate the United States securities laws, including,
but not limited to, Section I.A.(1) of the General Instructions to the Form F-6
Registration Statement, as amended from time to time, under the Securities Act
of 1933.
34
IN WITNESS WHEREOF, ENERSIS S.A. and CITIBANK, N.A. have duly executed
this Agreement as of the day and year first above set forth and all Holders of
Receipts shall become parties hereto upon acceptance by them of Receipts issued
in accordance with the terms hereof.
ENERSIS S.A.
By /s/ Jose Yuraszeck
-------------------------------------
Name: JOSE YURASZECK
Title: CHIEF EXECUTIVE OFFICER
CITIBANK N.A.
By /s/ Mary Lou Kelley
-------------------------------------
Mary Lou Kelley
Vice President
35
IN WITNESS WHEREOF, ENERSIS S.A. and CITIBANK, N.A. have duly executed
this Agreement as of the day and year first above set forth and all Holders of
Receipts shall become parties hereto upon acceptance by them of Receipts issued
in accordance with the terms hereof.
ENERSIS S.A.
By ------------------------
Name:
Title:
CITIBANK, N.A.
By
------------------------
Mary Lou Kelley
Vice President
35
EXHIBIT A
(FORM OF FACE OF RECEIPT]
Number_____________ AMERICAN DEPOSITARY SHARES
(EACH REPRESENTING
RIGHTS
ATTRIBUTABLE TO 50
SHARES)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
REPRESENTING
DEPOSITED SHARES
OF
ENERSIS S.A.
(Organized under the laws of the Republic of Chile)
The Holder of this Receipt is advised that the rights to convert into
Dollars the Pesos received in connection with the Deposited Securities and remit
abroad dividends and other payments are contingent upon the satisfaction of the
terms and conditions set forth in the Foreign Exchange Contract referred to
herein. Shares withdrawn from the facility may only be redeposited into the
facility subject to the satisfaction of certain conditions. Further, access to
the formal currency market is not automatic under the Foreign Exchange Contract
which requires the approval of the Central Bank of Chile (the "Central Bank")
(which will be deemed to have been given seven banking days after a request has
been made therefor). In addition, while under current Chilean law the Foreign
Exchange Contract cannot be amended unilaterally by the Chilean Government,
additional restrictions on the benefits of the Foreign Exchange Contract could
be imposed by the Chilean Government. Transferees of withdrawn shares are not
entitled to the rights set forth in the Foreign Exchange Contract.
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as Depositary (herein called the
"Depositary"), hereby certifies that ________________________ _is the owner of
American Depositary Shares, representing deposited shares, without nominal/par
value, or evidence of rights to receive such shares (herein called the
"Shares"), of Enersis S.A., a corporation organized under the laws of the
Republic of Chile (herein called the "Company"). At the date of the Deposit
A-1
Agreement (as hereinafter defined), each American Depositary Share represents
rights attributable to 50 Shares deposited under the Deposit Agreement with the
Custodian which at the date of execution of the Deposit Agreement is Banco de
Chile.
(1) The Deposit Agreement. This American Depositary Receipt is one of
---------------------
an issue (herein called the "Receipts"), all issued and to be issued upon the
terms and conditions set forth in the Deposit Agreement, dated as of October 18,
1993 (herein called the "Deposit Agreement"), by and among the Company, the
Depositary and all Holders from time to time of Receipts issued thereunder, each
of whom by accepting a Receipt agrees to become a party thereto and becomes
bound by all the terms and provisions thereof. The Deposit Agreement sets forth
the rights of Holders of the Receipts and the rights and duties of the
Depositary in respect of the 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 offices of the Depositary and the Custodians. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are qualified in their entirety
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Terms defined in the Deposit Agreement and not
otherwise defined herein have the same defined meanings set forth in the Deposit
Agreement.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
------------------------------------------------------------
surrender at the Principal Office of the Depositary of this Receipt, and upon
payment of the fee of the Depositary provided in Paragraph (6) of this Receipt
and of all taxes, duties and other governmental charges and fees payable in
connection herewith, and upon delivery of any certifications required pursuant
to the laws of Chile, and subject to the terms and conditions of the Deposit
Agreement, the Estatutos of the Company and the Deposited Securities, the Holder
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by such Receipt. Delivery of Deposited
Securities may be made by the delivery of certificates, to the extent such
Deposited Securities may be represented by certificates, which, if required by
law, shall be properly endorsed or accompanied by properly executed instruments
of transfer, and if such certificates may be so registered, registered in the
name of such Holder, or as ordered by such Holder or properly endorsed or
_____________________
* Subject to amendment as provided in Article IV of the Deposit Agreement.
A-2
accompanied by proper instruments of transfer. Notwithstanding any provision of
this Deposit Agreement or the Receipts, the Depositary may restrict withdrawals
of Deposited securities only for the reasons set forth in General Instruction
I.A.(1) of Form F-6 under the Securities Act of 1933.
Simultaneously with the delivery of Deposited Securities to the Holder
or its designee, the Custodian, pursuant to the Foreign Exchange Contract, will
issue or cause to be issued to the Holder or such designee a certificate which
states that the Deposited Securities have been transferred to the Holder or its
designee by the Depositary and that the Depositary waives in favor of the Holder
or its designee the right of access to the formal foreign exchange market
relating to such withdrawn Deposited Securities.
For purposes of a tax ruling dated January 29, 1990 issued by the
Chilean Internal Revenue Service regarding certain tax matters relating to
American Depositary Shares and American Depositary Receipts, the acquisition
value of any Share or other Deposited Security upon its withdrawal by a Holder
upon surrender of the corresponding Receipt shall be the highest reported sales
price of such Share or other Deposited Security on the Bolsa de Comercio de
Santiago (the "Santiago Stock Exchange") on the day on which the transfer of
such Share or other Deposited Security from the Depositary to such Holder is
recorded on the books of the Foreign Registrar. In the event that the shares or
other Deposited Securities are not then traded on the Santiago Stock Exchange,
such value shall be the highest reported sales price on the principal stock
exchange or other organized securities market in Chile on which such Shares or
other Deposited Securities are then traded. In the event that no such sales
price is reported on the day on which such transfer is recorded on the books of
the Foreign Registrar, such value shall be deemed to be the highest sales price
reported, provided, that if such day is more than 30 days prior to the date of
such transfer, such price shall be increased by the percentage increase over the
corresponding period in the Chilean consumer price index as reported by the
pertinent governmental authority of Chile.
(3) Transfers, Split-ups and Combinations. This Receipt is transferable
-------------------------------------
on the books of the Depositary by the Holder hereof in person or by duly
authorized attorney, upon surrender of this Receipt properly endorsed or
accompanied by proper instruments of transfer and duly stamped as may be
required by law; provided, however, that the Depositary after consultation with
-------- -------
the Company may close the transfer books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement. This Receipt may be split into other Receipts or may be
A-3
combined with other Receipts into one Receipt representing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered. As
a condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or a Custodian may require payment of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer, registration or conversion fee with respect thereto and payment
of any applicable fees as provided in Paragraph (6) of this Receipt, may require
the production of proof satisfactory to it as to the identity and genuineness of
any signature and may also require compliance with any laws or governmental
regulations relating to American Depositary Receipts or to the withdrawal of
Deposited Securities.
The Depositary may refuse to execute and to deliver
Receipts, register the transfer of any Receipt or make any distribution of, or
related to, Deposited Securities until it has received such proof of
citizenship, residence, exchange control approval, legal or beneficial ownership
or other information as it may deem necessary or proper or as the Company may
reasonably require by written request to the Depositary and the Custodian. After
consultation with the Company, the delivery of Receipts against deposits of
particular Shares may be withheld, or the delivery of Receipts against the
deposit of Shares generally may be suspended, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
of Receipts generally may be suspended, during any period when the transfer
books of the Depositary or the Company are closed, if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time. The surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended, except as required in connection with (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company (or the appointed agent for the Company for the transfer and
registration of Shares) or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares which
are required to be registered under provisions of the Securities Act of 1933
prior to being offered and sold publicly in the United States, unless a
registration statement is in effect as to such Shares. The Depositary will
comply with written instructions of the Company to not accept for deposit under
the Deposit Agreement any Shares identified in such instructions at such times
and under such circumstances as may reasonably be specified in such
A-4
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
(4) Liability of Holder for Taxes. If any tax or other governmental
-----------------------------
charge shall become payable with respect to any Deposited Securities represented
hereby, such tax or other governmental charge shall be payable by the Holder
hereof to the Depositary. The Depositary may refuse to effect any registration
of transfer of this Receipt or any withdrawal of Deposited Securities
represented hereby until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Holder hereof any part
or all of the Deposited Securities represented hereby, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge, the Holder hereof remaining liable for
any deficiency.
(5) Agreements by Depositor. Any person presenting Shares for deposit
-----------------------
or any Holder of a Receipt may be required from time to time to file such proof
of citizenship or residence, exchange control approval, payment of all
applicable Chilean taxes or other governmental charges, legal or beneficial
ownership, or such information relating to the registration on the books of the
Company or the Registrar, if applicable, of the Shares presented for deposit or
other information, to execute and deliver such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company reasonably may require by written request to the Depositary
and the Custodian. Every person depositing Shares under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares are validly
issued, fully paid non-assessable, free of any preemptive rights and that the
person making such deposit is duly authorized so to do. Every such person will
also be deemed to represent that the deposit of Shares or sale of Receipts by
that person is not restricted under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
(6) Charges of Depositary. The Depositary will charge the party to
---------------------
whom Receipts are delivered against deposits, and the party surrendering
Receipts for delivery of Deposited Securities, $5.00 for each 100 American
Depositary Shares (or portion thereof) represented by the Receipts issued or
surrendered. In addition, Holders will pay all other charges and customary
expenses as are incurred by the Depositary in connection with its obligations
and duties under the Deposit Agreement as stated in the Deposited Agreement and
Exhibit B thereof. The Company will pay the other charges of the Depositary and
those of any Registrar under the Deposit Agreement, with the exception of (i)
A-5
taxes and other governmental charges, (ii) share transfer, exchange or
registration fees on deposits and withdrawals of Shares, (iii) such cable, telex
and facsimile transmission and delivery charges as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or Holders
of Receipts, and (iv) such expenses as are incurred by the Depositary in the
conversion of foreign currency into dollars.
All such charges may be changed by agreement between the Depositary and
the Company at any time and from time to time, effective only after 90 days'
notice thereof is given to Holders.
(7) Title to Receipt. It is a condition of this Receipt, and every
----------------
successive Holder hereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the American Depositary Shares evidenced
hereby), when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement, and for
all other purposes.
(8) Validity of Receipt. This Receipt shall not be entitled to any
-------------------
benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized officer or, if a Registrar for the Receipts shall
have been appointed, such signature may be a facsimile if this Receipt is
countersigned by the manual signature of a duly authorized officer of such
Registrar.
(9) Available Information. The Company is subject to the periodic
---------------------
reporting requirements of the Securities Exchange Act of 1934 and, accordingly,
files certain reports with the Commission. These public reports can be inspected
by the Holder of this Receipt and copied at public reference facilities
maintained by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549.
(10) Disclosure of Beneficial Ownership. To the extent that provisions
----------------------------------
of or governing any Deposited Securities may require the disclosure of
beneficial or other ownership of Deposited Securities, other Shares and other
securities to the Company and may provide for blocking transfer and voting or
other rights to enforce such disclosure or limit such ownership, the Depositary
shall use its reasonable efforts to comply with Company instructions as to
A-6
Receipts in respect of any such enforcement or limitation and Holders shall
comply with all such disclosure requirements and ownership limitations and shall
cooperate with the Depositary's compliance with such Company instructions.
(11) Compliance with Chilean Law. Pursuant to a Circular Letter of the
---------------------------
SVS dated June 28, 1990, Holders are deemed, for certain purposes of Chilean
law, to be treated as holders of Deposited Securities. Accordingly, Holders
shall, as a matter of Chilean law, be obligated to comply with the requirements
of Articles 12 and 54 and Title XV of Law 18,045 of Chile. Article 12 requires
that, among other things, Holders report to the SVS and the stock exchanges in
Chile on which the Shares are listed:
(a) any direct or indirect acquisition or sale of Receipts that
results in the Holder acquiring or disposing of, directly or
indirectly, the right to own 10% or more of the total share
capital of the Company; and
(b) any direct or indirect acquisition or sale of Receipts or
options to buy or sell Receipts, in any amount, made by (i) a
Holder that owns Receipts representing 10% or more of the
Shares or (ii) a director, general manager or manager of the
Company.
Article 54 requires that, among other things, any Holder intending to acquire
control, directly or indirectly (as defined in Title XV of Law 18,045), of the
Company (a) publish a notice of such intention in a newspaper in Chile
disclosing the price and terms of any such acquisition at least five days prior
to the actual acquisition and (b) send a written notice of such intention to the
SVS and the stock exchanges in Chile on which the Shares are listed prior to
such publication.
Dated:
CITIBANK, N.A., as Depositary
By______________________________
(Authorized Officer)
The address of the Principal Office of the Depositary is 111 Wall
Street, 5th Floor, New York, New York 10043.
A-7
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(12) Dividends and Distributions; Rights. Whenever the Custodian or
-----------------------------------
Depositary shall receive any cash dividend or other cash distribution on the
Deposited Securities, the Depositary will, if at the time of receipt thereof any
amounts received in a currency other than United States dollars can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and, subject to the provisions of the
Deposit Agreement, convert or cause to be converted such dividend or
distribution into United States dollars and shall distribute the amount thus
received to the Holders of Receipts entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that the amount distributed shall be
-------- -------
reduced by any amounts required to be withheld by the Company, its agent or the
Depositary or a Custodian on account of taxes. If in the judgment of the
Depositary amounts received in currency other than United States dollars may not
be converted on a reasonable basis into United States dollars transferable to
the United States, or may not be so convertible for all of the Holders of
Receipts entitled thereto, the Depositary may in its discretion make such
conversion, if any, and distribution in United States dollars to the extent
permissible to the Holders of Receipts entitled thereto and may distribute the
balance of such currency received and not so convertible by the Depositary to,
or hold such balance for the account of, the Holders of Receipts entitled
thereto. If in the opinion of the Depositary any distribution other than cash,
rights or Shares upon any Deposited Securities cannot be made proportionately
among the Holders of Receipts entitled thereto, or if for any other reason the
Depositary deems such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale, at such place or places and upon such terms as it
may deem proper) of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale will be distributed by the
Depositary to the Holders of Receipts entitled thereto as in the case of a
distribution received in cash. If any distribution upon any Deposited securities
consists of a dividend in, or free distribution of, Shares, the Depositary may,
and will, if the Company shall so request, distribute to the Holders of
outstanding Receipts entitled thereto, in proportion to the
A-8
number of American Depositary Shares representing such Deposited Securities
held by them respectively, additional Receipts for an aggregate number of
American Depositary Shares representing the number of Shares received as such
dividend or free distribution subject to the terms of the Deposit Agreement,
including the withholding of any tax or other governmental charge. In lieu of
issuing Receipts for fractional American Depositary Shares in any such case, the
Depositary will sell the number of Shares represented by the aggregate of such
fractions and distribute the net proceeds, converted into United States dollars
if not in such dollars (if such conversion may in the judgment of the Depositary
be achieved on a reasonable basis), to the Holders of Receipts entitled thereto.
If additional Receipts are not so distributed (except as provided in the
preceding sentence), each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby. Notwithstanding the foregoing, in the event that the
Depositary determines that a distribution in Shares may not legally be made to
some or all Holders of Receipts, the Depositary may sell such Shares and remit
the proceeds thereof to the Holders of Receipts entitled thereto as in the case
of a distribution in cash. In the event that the Company shall offer or cause to
be offered to the holders of any Deposited Securities any rights to subscribe
for additional Shares or any rights of any nature, the Depositary, after
consultation with the Company, shall have discretion as to whether and how such
rights are to be made available to the Holders of Receipts; provided, however,
that the Depositary shall, if requested by the Company, either (a) make such
rights available to Holders of Receipts by means of warrants or otherwise, if
lawful and feasible, or (b) if making such rights available is not lawful or not
feasible, or if the rights represented by such warrants or other instruments are
not exercised and appear to be about to lapse, sell such rights or warrants or
other instruments at public or private sale, at such place or places and upon
such terms as the Depositary may deem proper, and allocate the proceeds of any
such sale for the account of the Holders of Receipts otherwise entitled thereto
upon an averaged or other practicable basis without regard to any distinctions
among such Holders because of exchange restrictions, or the date of delivery of
any Receipt or Receipts, or otherwise. If the registration of the securities to
which such rights relate is required under the Securities Act of 1933, no rights
shall be made available to Holders in the United States or to any U.S. person
(each as defined in Regulation S under the Securities Act of 1933) unless such
securities are registered or exempt from registration under such Act, provided,
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that the Company shall have no obligation to file a registration statement or
endeavor to have a registration statement declared effective.
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(13) Record Dates. Whenever any cash dividend or other cash
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distribution shall become payable or any distribution other than cash shall be
made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities, the Depositary will fix a
record date (which to the extent practicable shall be the same record date set
by the Company for the determination of the Holders of Receipts who shall be
entitled to receive such dividend, distribution or rights, or the net proceeds
of the sale thereof or to exercise any voting rights at such meeting, subject to
the provisions of the Deposit Agreement.
(14) Voting of Deposited Securities. As soon as practicable after
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receipt of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall mail to
Holders a notice containing (a) such information as is contained in the
solicitation materials, if any, and (b) a statement that each Holder at the
close of business on a specified record date will be entitled, subject to the
provisions of or governing Deposited Securities (including, without limitation,
any applicable provision of Chilean law and of the Estatutos of the company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Deposited Securities represented by the American Depositary
Shares evidenced by such Holders' Receipts. Upon the written request of a Holder
on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities presented by
the American Depositary Shares evidenced by such Holder's Receipts in accordance
with any instructions set forth in such request. The Depositary shall not itself
exercise any voting discretion over any Deposited Securities. If no instructions
are received by the Depositary from any Holder with respect to any of the
Deposited Securities represented by the American Depositary Shares evidenced by
such Holder's Receipts on or before the date established by the Depositary for
such purpose, such Holder shall be deemed, and the Depositary shall deem such
Holder, to have instructed the Depositary to give a discretionary proxy with
full power of substitution, to the Chairman of the Board or to a person
designated by him, to vote the Deposited Securities on any matters other than
contested matters (it being understood that an election of Directors at an
annual or extraordinary meeting of shareholders is not a contested matter)
matters that may affect substantially the rights or privileges attributable to
the Deposited Securities represented by the American Depositary Shares evidenced
by such Holder's Receipts, and the Depositary shall give a discretionary
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proxy with full power of substitution to the Chairman of the Board or to a
person designated by him to vote the Deposited Securities on any such matters,
provided that no such instruction shall be deemed and no such discretionary
proxy shall be given with respect to any matter as to which the Chairman of the
Board directs the Depositary that he does not wish such proxy to be given. No
such proxy shall continue in effect beyond 5 P.M., Santiago Time, on the
penultimate day of any calendar month.
(15) Changes Affecting Deposited Securities. Upon any change in nominal
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value, split-up, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the American Depositary
Shares shall thenceforth represent the new Deposited Securities so received in
exchange or conversion, unless additional or new Receipts are delivered pursuant
to the following sentence. In any such case the Depositary may execute and
deliver additional Receipts as in the case of a stock dividend, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts.
(16) Reports; Inspection of Transfer Books. The Depositary will make
-------------------------------------
available for inspection by Holders of Receipts at its Principal Office any
reports and communications received from the Company which are received by the
Depositary as the holder of the Deposited Securities and made generally
available to the holders of Deposited Securities. The Depositary will also send
to Holders of Receipts copies of such reports when furnished by the Company as
provided in the Deposit Agreement. The Depositary will keep books for the
registration of Receipts and their transfer which at all reasonable times will
be open for inspection by the Company and Holders of Receipts, provided that
such inspection shall not be for the purpose of communicating with Holders of
Receipts in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the Receipts.
(17) Taxation. Notwithstanding any other provision of the Deposit
--------
Agreement, in the event that the Depositary determines that any distribution in
property (including Shares or rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may dispose of all or a portion of such property (including
Shares and rights to subscribe therefor) in such amounts and in such manner as
the Depositary deems necessary and practicable to pay such taxes or other
governmental charge, by public or private sale, at such place or places and upon
A-11
such terms as it may deem proper, and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes to the Holders of
Receipts entitled thereto.
(18) Certain Rights of the Depositary; Limitations.
---------------------------------------------
Subject to the further terms and provisions of this paragraph, the Depositary
and its agents may own and deal in any class of securities of the Company and
its affiliates and in Receipts. The Depositary may issue Receipts against
evidence of rights to receive Shares from the Company, or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished on behalf of the holder thereof. The Depositary shall not lend Shares
or Receipts; provided, however, that the Depositary reserves the right to (i)
issue Receipts prior to the receipt of Shares pursuant to Section 2.02 and (ii)
deliver Shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.05, including Receipts which were issued under (i) above but for which
Shares may not have been received. The Depositary may receive Receipts in lieu
of Shares under (i) above and receive Shares in lieu of Receipts under (ii)
above. Each such transaction shall be (a) accompanied by (x) a written
representation by the person or entity (the "Applicant") to whom Receipts are
issued or Shares delivered that at the time the Depositary issues such Receipts
or delivers such Shares, the Applicant or its customer owns the Shares or
Receipts to be delivered to the Depositary, or (y) such evidence of ownership of
Shares or Receipts as the Depositary deems appropriate, (b) subject to a written
representation by the Applicant that it will hold such Shares or Receipts in
trust for the Depositary until their delivery to the Depositary or custodian,
reflect on its records the Depositary as owner of such Shares or Receipts and
deliver such Shares upon the Depositary's request, (c) at all times fully
collateralized (marked to market daily) with cash, United States government
securities, or other collateral of comparable safety and liquidity, (d)
terminable by the Depositary on not more than five (5) business days notice, and
(e) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary intends that the number of Receipts issued by
it under (i) above and outstanding at any time, generally will not exceed thirty
percent (30%) of the Receipts issued by the Depositary and with respect to which
Shares are on deposit with the Depositary or custodian; provided, however, that
the Depositary reserves the right to change or disregard such limit from time to
time as the Depositary deems appropriate. The Depositary will also set limits
with respect to the number of Receipts and Shares involved in transactions to be
effected hereunder with any one person on a case by case basis as it deems
appropriate.
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Collateral provided by an Applicant for Receipts or Shares, but not the
earnings thereon, shall be held for the benefit of the Holder. The Depositary
may retain for its own account any compensation received by it in connection
with the foregoing, including without limitation earnings on the collateral.
(19) Liability of the Company and the Depositary. Neither the Company
-------------------------------------------
nor the Depositary shall incur any liability to any Holder of this Receipt, if
by reason of any provision of any present or future law of any country or of
any governmental authority (including any action by the Central Bank under the
Foreign Exchange Contract), or by reason of any provision, present or future,
of the Foreign Exchange Contract and Estatutos of the Company or the Deposited
Securities, or by reason of any act of God or war or other circumstance beyond
its control, the Depositary or the Company shall be prevented or forbidden, or
be subject to any civil or criminal penalty on account of, or delayed from
doing or performing any act or thing which by the terms of the Deposit
Agreement it is provided shall be done or performed or the Depositary or the
Company shall be obligated to do or perform any act which obligation is
inconsistent with the provisions of the Deposit Agreement; nor shall the
Depositary or the Company incur any liability to any Holder of a Receipt by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing which by the terms of the Deposit Agreement it is provided
shall or may be done or performed, or by reason of any exercise of, or failure
to exercise any discretion provided in the Deposit Agreement. Neither the
Company nor the Depositary assumes any obligation or shall be subject to any
liability under the Deposit Agreement to Holders of Receipts, except that they
agree to use their best judgment and good faith in the performance of such
duties as are specifically set forth in the Deposit Agreement. Neither the
Company nor the Depositary shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense and liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required, and
no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of a Custodian being solely to the Depositary.
Neither the Company nor the Depositary shall be liable for any action or
inaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary will not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such
vote, provided that any such action or inaction is in good faith.
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Subject to the laws of Chile and the Estatutos of the Company, the Depositary
may own and deal in any class of securities of the Company and its affiliates
and in Receipts.
(20) Resignation and Removal of Depositary; Substitution of the
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Custodian. The Depositary may at any time resign as Depositary under the Deposit
- ---------
Agreement upon 90 days written notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company upon 90 days
written notice of such removal, effective upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The term "Depositary" shall also refer to any successor depositary
appointed pursuant to this Paragraph (20). The Depositary may at any time
appoint a substitute custodian and the term "Custodian" shall also refer to such
substitute.
(21) Amendment of Deposit Agreement and Receipts. The Receipts and the
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Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary. Any amendment which shall impose or
increase any fees or charges (other than the fees of the Depositary for the
execution and delivery or the cancellation of Receipts and taxes or other
governmental charges), or which shall otherwise prejudice any substantial
existing right of Holders of Receipts, shall, however, not become effective as
to outstanding Receipts until the expiration of three months after notice of
such amendment shall have been given to the Holders of outstanding Receipts.
Every Holder of a Receipt at the time any amendment to the Deposit Agreement so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Holder
hereof to surrender this Receipt and receive therefor the Deposited Securities
represented hereby.
(22) Termination of Deposit Agreement. The Depositary will at any time
--------------------------------
at the direction of the Company terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 60 days prior to the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement (upon 60 days' notice to
the Holders) at any time 60 days after the Depositary shall have resigned, if a
successor depositary shall not have been appointed and accepted its appointment
within such 60 days. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter will discontinue the registration of
transfers of Receipts, will suspend the distribution of dividends to the Holders
thereof and will not give any further notices or perform any further acts under
A-14
the Deposit Agreement, except the collection of dividends and other
distributions pertaining to Deposited Securities, the sale of rights and the
delivery of Deposited Securities, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary. At any time after the expiration of six months from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold the net proceeds of any such sale,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, for the pro rata benefit of the Holders of
Receipts not theretofore surrendered. Thereafter the Depositary shall be
discharged from all obligations under the Deposit Agreement, except to account
for such net proceeds and other cash. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement, except for its obligations to the Depositary under Sections
5.08 and 5.09 of the Deposit Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding anything in
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the Deposit Agreement to the contrary, the Company and the Depositary have each
agreed that it will not exercise any rights it has under the Deposit Agreement
to prevent the withdrawal or delivery of Deposited Securities in a manner which
would violate the United States securities laws, including, but not limited to,
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
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(d) Opinion of counsel to the Depositary
Frettra M. Miller
Vice President and
Senior Counsel
Tel212/657-2150
Fax212/657-3744
frettra.m.miller@citigroup.com
December 3, 2003
Citibank, N.A.
ADR Department
111 Wall Street
New York, NY 10043
Re: American Depositary Receipts evidencing American Depositary Shares each
Representing fifty (50) common shares, without par value, of Enersis S.A.
Ladies and Gentlemen:
I refer to the Registration Statement to be filed on Form F-6 (the
"Registration Statement") by the legal entity created by the Deposit Agreement
(as defined herein) for which you are acting as the depositary, for the
purpose of registering under the Securities Act of 1933, as amended,
100,000,000 American Depositary Shares ("ADSs") evidenced by American
Depositary Receipts ("ADRs") to be issued under the Amended and Restated
Deposit Agreement, dated as of June 1, 1994, by and among Citibank, N.A., as
depositary, Enersis S.A., a corporation organized and existing under the laws
of the Republic of Chile (the "Company"), and all Holders from time to time of
ADRs issued thereunder, a copy of which is being filed as Exhibit (a) to the
Registration Statement (the "Deposit Agreement"). Each ADS will represent
fifty (50) common shares, no par value, or evidence of the right to receive
such shares, of the Company. Capitalized terms used herein without definition
shall have the meaning assigned thereto in the Deposit Agreement.
Assuming that the Deposit Agreement has been duly executed and delivered by
the Company, I am of the opinion that the ADSs covered by the Registration
Statement, when issued in accordance with the terms of the Deposit Agreement,
will be legally issued and will entitle the Holders thereof to the rights
specified in the Deposit Agreement and the ADRs.
I hereby consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement.
I am a member of the Bar of the State of New York. This opinion is
limited to the laws of the State of New York and the Federal laws
of the United States.
Very truly yours,
/s/ Frettra M. Miller
Frettra M. Miller
(e) Certification under Rule 466
Certification under Rule 466
The Depositary, Citibank, N.A., represents and certifies the following:
(1) That it previously had filed a Registration Statement on Form F-6 (Enersis
S.A., File No. 33-75120), which the Commission declared effective, with
terms of deposit identical to the terms of this Registration Statement.
(2) That its ability to designate the date and time of effectiveness under
Rule 466 has not been suspended.
Citibank, N.A., as depositary
By: /s/ Mildred Quinones-Holmes
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Name: Mildred Quinones-Holmes
Title: Vice President