ADR Amendments. (a) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18, 2017, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”. (b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”. (c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”. (d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 2 contracts
Samples: Deposit Agreement (Citibank,N.A./ADR), Deposit Agreement (Citibank,N.A./ADR)
ADR Amendments. (a) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date hereof, each ADS represents the right to receive ninety (90) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(b) The second sentence of the introductory paragraph of each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of [July 31], 2018, each ADS represents the right to receive ninety (90) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18April 13, 20172015, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·July 31], 2022 2018 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 2 contracts
Samples: Deposit Agreement (Citibank,N.A./ADR), Deposit Agreement (Citibank,N.A./ADR)
ADR Amendments. (a) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue (herein called the “ADRs”Receipts), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18April 13, 20172015, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of July 31, 2018, as further amended by Amendment No. 2, dated as of May 19, 2020, and as further amended by Amendment No. 3, dated as of [·], 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of ADSs the Receipts issued thereunder, each of whom by accepting a Receipt becomes bound by all the terms and provisions thereof.”.
(b) Paragraph (624) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive fifteen (15) fully paid ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive fifteen (15) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. (London) (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 1811, 20172020, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 DATE] (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty-five (25) fully paid ordinary shares, nominal value £0.04 per share)”
(b) The second sentence of the introductory paragraph of the first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive twenty-five (25) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement is Citibank, N.A., London Branch (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18October 2, 2017, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]April 16, 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
Samples: Deposit Agreement (NuCana PLC)
ADR Amendments. (a) The CUSIP number in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such CUSIP number in its entirety and inserting the following in its stead: “CUSIP NUMBER 50000X000”
(b) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive three hundred sixty (360) fully paid ordinary shares)”
(c) The name of the Company on the front of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such name in its entirety and inserting the following name in its stead: “MERCURITY FINTECH HOLDING INC.”
(d) The first sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America, as depositary (the “Depositary”), hereby certifies that ____________ is the owner of ____________ American Depositary Shares (hereinafter “ADS”) representing deposited ordinary shares, including evidence of rights to receive such ordinary shares (the “Shares”), of Mercurity Fintech Holding Inc. (formerly known as “JMU Limited” and “Wowo Limited”), a corporation incorporated under the laws of the Cayman Islands (the “Company”).”
(e) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date hereof, each ADS represents the right to receive three hundred sixty (360) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(f) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18April 13, 20172015, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]July 31, 2022 2018, and as amended by Amendment No. 2 to the Deposit Agreement, dated as of May 19, 2020 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bg) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive five (5) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive five (5) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18April 2, 20172014, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 2021 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The CUSIP number in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such CUSIP number in its entirety and inserting the following in its stead: “CUSIP NUMBER 400000000”
(b) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive three (3) fully paid ordinary shares)”
(c) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive three (3) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(d) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18November 2, 2017, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]August 24, 2022 2020 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(be) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive ten (10) fully paid Class A ordinary shares)”.
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive ten (10) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18May 4, 2017, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]December 3, 2022 2019 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty (20) fully paid ordinary shares”.
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date hereof, each ADS represents the right to receive twenty (20) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August November 18, 20172014, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·●], 2022 2019 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive ten (10) fully paid ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each one (1) ADS represents the right to receive ten (10) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement is Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18September 30, 20172020, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·l], 2022 2023 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of the ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of the Deposit Agreement (as hereinafter defined), each ADS represents the right to receive one (1) Share deposited under the Deposit Agreement with the Custodian, which at the date of execution of the Deposit Agreement is Citigroup Global Markets Deutschland AG (the “Custodian”).”
(b) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18October 23, 20172013, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·DATE], 2022 2020 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bc) Paragraph The first sentence of paragraph (65) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article sentence in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any other provision in of the Deposit Agreement or any this ADR, each Holder and Beneficial Owner of the Company may instruct the Depositary to, and the Depositary may, and upon such instruction ADSs represented hereby agrees to comply with requests from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company rules and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the New York Stock Exchange or any other stock exchange on which the Shares or ADSs are are, or will be, registered, traded or listed, in lieu or the Articles of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social Association of the Company, and (ii) which are made to provide information, inter alia, as to the capacity in which such Holder or Beneficial Owner of such owns ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities Shares represented by such Holder’s ADSs, ADSs as the Depositary will deem such Holder (unless otherwise specified in case may be) and regarding the notice distributed to Holdersidentity of any other person(s) to have instructed the Depositary to vote in favor of the items set forth interested in such voting instructions. Notwithstanding anything else contained hereinADSs (and the Shares represented by such ADSs as the case may be) and the nature of such interest and various other matters, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect they are Holders and/or Beneficial Owners at the time of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely mannerrequest.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive five hundred (500) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive five hundred (500) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18May 4, 2017, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of December 3, 2019, as amended by Amendment No. 2 to the Deposit Agreement, dated as of [·], 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty (20) Class A ordinary shares of Ambow Education Holding Ltd.)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of the Deposit Agreement (as hereinafter defined), each ADS represents the right to receive twenty (20) Shares deposited under the Deposit Agreement with the Custodian, which at the date of execution of the Deposit Agreement is Citibank, N.A. – Hong Kong (the ”Custodian“).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the ”ADRs“ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 1810, 20172010, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 l] (as so amended and as further amended and supplemented from time to time, the “”Deposit Agreement”“), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of the ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “CUSIP NUMBER: _______ American Depositary Shares (each American Depositary Share representing six (6) equity shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive six (6) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. - Mumbai Branch (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August October 18, 20171999, as amended by Amendment No. 1 to Deposit Agreement, dated as of January 6, 2000, as amended by Amendment No. 2 to Deposit Agreement, dated as of September 24, 2002, as supplemented by the Second Amended Supplemental Letter Agreement, dated as of November 2, 2007, as further amended by Amendment No. 3 to Deposit Agreement, dated as of June 15, 2009, and Restated as further amended by Amendment No. 4 to Deposit Agreement, dated as of [·l] [l], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “”Deposit Agreement”“), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph (610) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date hereof, each ADS represents the right to receive one hundred eighty (180) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(b) The second sentence of the introductory paragraph of each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of July 31, 2018, each ADS represents the right to receive one hundred eighty (180) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18April 13, 20172015, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]July 31, 2022 2018 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date hereof, each ADS represents the right to receive one hundred eighty (180) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(b) The second sentence of the introductory paragraph of each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of [July 31], 2018, each ADS represents the right to receive one hundred eighty (180) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18April 13, 20172015, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·July 31], 2022 2018 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty-five (25) fully paid ordinary shares, nominal value £0.04 per share)”
(b) The second sentence of the introductory paragraph of the first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive twenty-five (25) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement is Citibank, N.A., London Branch (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18October 2, 2017, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·l], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty (20) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive twenty (20) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 1819, 20172019, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]January 18, 2022 2023 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
Samples: Deposit Agreement (9F Inc.)
ADR Amendments. (a) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date hereof, each ADS represents the right to receive forty-five (45) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(b) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18May 4, 20172011, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]February 6, 2022 2017 and by Amendment No. 2 to the Deposit Agreement, dated as of __________ (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The CUSIP number in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such CUSIP number in its entirety and inserting the following in its stead: “CUSIP NUMBER 50000X000”
(b) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive three hundred sixty (360) fully paid ordinary shares)”
(c) The name of the Company on the front of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such name in its entirety and inserting the following name in its stead: “MERCURITY FINTECH HOLDING INC.”
(d) The first sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America, as depositary (the “Depositary”), hereby certifies that ____________ is the owner of ____________ American Depositary Shares (hereinafter “ADS”) representing deposited ordinary shares, including evidence of rights to receive such ordinary shares (the “Shares”), of Mercurity Fintech Holding Inc. (formerly known as “JMU Limited” and “Wowo Limited”), a corporation incorporated under the laws of the Cayman Islands (the “Company”).”
(e) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date hereof, each ADS represents the right to receive three hundred sixty (360) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(f) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18April 13, 20172015, as amended by Amendment No. 1 to the Second Amended Deposit Agreement, dated as of July 31, 2018, and Restated as amended by Amendment No. 2 to the Deposit Agreement, dated as of [·], 2022 2020 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bg) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty (20) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive twenty (20) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18February 3, 20172020, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 DATE] (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive five (5) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive five (5) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18November 19, 20172018, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive ten (10) fully paid ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive ten (10) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. (London) (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18November 2, 20172018, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 2023 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph The fourth sentence of paragraph (615) (c) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article sentence in its entirety and inserting the following in its stead: “The Company has informed If the above conditions are satisfied, the Depositary thatshall, pursuant subject to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 conditions of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix establish the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with according to paragraph (17) and Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense Agreement and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time establish procedures to enable the Holder hereof to return voting instructions elect to receive the Depositary proposed distribution in a timely mannercash or in additional ADSs.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive five hundred (500) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive five hundred (500) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18May 4, 2017, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]December 3, 2019, as amended by Amendment No. 2 to the Deposit Agreement, dated as of July 6, 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive one hundred and fifty (150) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive one hundred and fifty (150) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18May 4, 2017, as amended by Amendment No. 1 to the Second Amended Deposit Agreement, dated as of December 3, 2019, Amendment No. 2 to Deposit Agreement, dated as of July 6, 2022, and Restated Amendment No. 3 to Deposit Agreement, dated as of [·•], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive one hundred (100) fully paid Class A ordinary shares)”
(b) The phrase in the center of first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead:
(c) The first sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America, as depositary (the “Depositary”), hereby certifies that _____________ is the owner of ______________ American Depositary Shares (hereinafter “ADS”) representing deposited Class A ordinary shares, including evidence of rights to receive such Class A ordinary shares (the “Shares”), of Lixiang Education Holding Co., Ltd., an exempted company with limited liability incorporated and existing under the laws of the Cayman Islands, and its successors (the “Company”).”
(d) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18September 30, 20172020, as amended by Amendment No. 1 to the Second Amended Deposit Agreement, dated as of January 3, 2024, by Amendment No. 2 to Deposit Agreement, dated as of September 30, 2024, and Restated by Amendment No. 3 to Deposit Agreement, dated as of [·●], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of the ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The CUSIP number in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such CUSIP number in its entirety and inserting the following in its stead: “CUSIP NUMBER 400000000”
(b) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive three (3) fully paid ordinary shares)”
(c) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive three (3) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(d) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18November 2, 2017, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of August [·], 2022 2020 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(be) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. The form of ADR attached as Exhibit A to the Deposit Agreement and each of the ADRs issued and outstanding under the terms of the Deposit Agreement are hereby amended as of the Effective Date as follows:
(a) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “Receipts” or “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18June 12, 20172007, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·●] [●], 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of ADSs issued thereunder, with each Holder and Beneficial Owner of ADSs, by accepting an ADS, becoming bound by all the terms and provisions thereof.”.
(b) Paragraph (610) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article section in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each one (1) American Depositary Share representing the right to receive seventy-two (72) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each one (1) ADS represents the right to receive seventy-two (72) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18June 10, 20172021, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 2021 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive one hundred (100) fully paid ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each one (1) ADS represents the right to receive one hundred (100) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of execution of the Deposit Agreement is Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18September 30, 20172020, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]January 3, 2022 2024, as amended by Amendment No. 2 to Deposit Agreement, dated as of September 30, 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of the ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive ten (10) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive ten (10) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18June 16, 20172020, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·l], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty (20) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive twenty (20) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 1819, 20172019, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 DATE] (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive three (3) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive three (3) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18November 19, 20172018, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·], 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive ten (10) fully paid ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive ten (10) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. (London) (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18November 2, 20172018, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]March 10, 2022 2023 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph The fourth sentence of paragraph (615) (c) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article sentence in its entirety and inserting the following in its stead: “The Company has informed If the above conditions are satisfied, the Depositary thatshall, pursuant subject to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 conditions of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix establish the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with according to paragraph (17) and Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense Agreement and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time establish procedures to enable the Holder hereof to return voting instructions elect to receive the Depositary proposed distribution in a timely mannercash or in additional ADSs.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive three (3) fully paid Class A ordinary shares)”
(b) The phrase in the center of first page of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead:
(c) The first sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America, as depositary (the “Depositary”), hereby certifies that _____________is the owner of ______________ American Depositary Shares (hereinafter “ADS”) representing deposited Class A ordinary shares, including evidence of rights to receive such Class A ordinary shares (the “Shares”), of Akso Health Group, a company organized under the laws of the Cayman Islands (the “Company”).”
(d) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18November 2, 2017, as amended by Amendment No. 1 to the Second Amended Deposit Agreement, dated as of August 24, 2020, and Restated as further amended by Amendment No. 2 to the Deposit Agreement, dated as of [·l], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive twenty (20) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive twenty (20) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18February 3, 20172020, and as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·]November 4, 2022 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive three fully paid ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive three (3) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. – Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18March 9, 20172023, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·l], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive ten (10) fully paid Class A ordinary shares)”.
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive ten (10) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of issuance of this ADR is Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18May 4, 2017, as amended by Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of [·●], 2022 2019 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(bd) Paragraph (626) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article paragraph in its entirety and inserting the following in its stead:
Appears in 1 contract
ADR Amendments. (a) The phrase in the top, right-hand corner of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such phrase in its entirety and inserting the following in its stead: “American Depositary Shares (each American Depositary Share representing the right to receive two hundred (200) fully paid Class A ordinary shares)”
(b) The second sentence of the introductory paragraph of the Form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “As of the date of issuance of this ADR, each ADS represents the right to receive two hundred (200) Shares deposited under the Deposit Agreement (as hereinafter defined) with the Custodian, which at the date of the execution of the Deposit Agreement was Citibank, N.A. - Hong Kong (the “Custodian”).”
(c) The first sentence of paragraph (1) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such sentence in its entirety and inserting the following in its stead: “This American Depositary Receipt is one of an issue of American Depositary Receipts (herein called the “ADRs”), all issued and to be issued upon the terms and conditions set forth in the Second Amended and Restated Deposit Agreement, dated as of August 18February 3, 20172020, as amended by Amendment No. 1 to the Second Amended Deposit Agreement, dated as of November 4, 2022, and Restated as amended by Amendment No. 2 to the Deposit Agreement, dated as of [·l], 2022 2024 (as so amended and as further amended and supplemented from time to time, the “Deposit Agreement”), by and among the Company, the Depositary Depositary, and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”.
(b) Paragraph (6) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “The Company has informed the Depositary that, pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances, (i) restrict the transfers of the Shares where such transfers may result in the direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to a single owner of Shares, or group of owners of Shares, where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) impose a compulsory offer by the Company to repurchase Shares owned by a single owner, or group of owners, that exceed the limits set forth by applicable Brazilian law and/or in the Estatuto Social of the Company, at a purchase price determined in accordance with applicable Brazilian law and/or the Estatuto Social of the Company. The Company has further informed the Depositary that Brazilian law and its Estatuto Social may, in certain circumstances, prohibit shareholder agreements entered into which could have the effect of exceeding the limits imposed by Brazilian law and/or the Estatuto Social of the Company on direct or indirect ownership of Shares or voting rights by a single owner, or group of owners, of Shares. The Company has also informed the Depositary that (x) the limitations on direct or indirect ownership of Shares or voting rights set forth in the Company’s Estatuto Social are intended to regulate direct and indirect beneficial ownership of Shares and voting rights and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares, and (y) the prohibition set forth in the Company’s Estatuto Social on shareholder agreements entered into with the intent to exceed such ownership of Shares or voting rights is intended prohibit such agreements among direct and indirect beneficial owners of Shares and not the actions of intermediaries, such as the Depositary and the Custodian, who hold the title of Shares for the benefit of the beneficial owners of the Shares without discretionary powers over such Shares or the voting rights associated with such Shares. As a result, the Company agrees with the Depositary that (i) the limitations on direct or indirect ownership of Shares or voting rights shall apply to the Holders and Beneficial Owners of ADSs (as opposed to the Custodian or the Depositary), and (ii) the Deposit Agreement shall not be considered a shareholder agreement entered into with the intent to exceed the limitation on ownership of Shares or voting rights. Notwithstanding any provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company use commercially practicable efforts to, (i) restrict the transfer of Shares and the issuance, transfer and cancellation of ADSs when the Depositary is informed by the Company that such issuance, transfer or cancellation may result in the direct or indirect ownership of Shares (including Shares in the form of ADSs) or voting rights by certain Holders and/or Beneficial Owners of ADSs exceeding the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, (ii) remove or restrict the voting rights accruing to ADSs when the Depositary is informed by the Company that the direct or indirect ownership of voting rights by certain Holders and/or Beneficial Owners of ADSs exceeds the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits, as imposed under applicable Brazilian law and/or the Estatuto Social of the Company, and (iii) take action with respect to the ownership interests of any Holder or Beneficial Owner of ADSs in particular, and the Holders and Beneficial Owners of ADSs in general, in excess of the ownership and/or voting limits set forth in applicable Brazilian law and/or the Estatuto Social of the Company, including, but not limited to, the limitation on corporate actions made available to Holders and Beneficial Owners of ADSs and the mandatory sale or disposition on behalf of Holders or Beneficial Owners of the Shares represented by the ADSs in excess of such limitations, if and to the extent such action is not prohibited by applicable Brazilian law and/or the Estatuto Social of the Company. Nothing herein shall be interpreted as obligating the Depositary or the Company to ensure compliance by direct or indirect owners of Shares (including, without limitation, Holders and Beneficial Owners of ADSs) with the ownership restrictions under applicable Brazilian law and/or the Estatuto Social of the Company. The Depositary shall not be subject to any liability for any acts performed or omitted by the Depositary, the Custodian, and any of their respective directors, employees, agents, and Affiliates pursuant to the terms of Section 3.5 of the Deposit Agreement.”.
(c) Paragraph (17) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead: “As soon as practicable after receipt of notice of any meeting at which the holders of Deposited Securities are entitled to vote, or of solicitation of consents or proxies from holders of Deposited Securities, the Depositary shall fix the ADS Record Date in respect of such meeting or solicitation of consent or proxy in accordance with Section 4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company in writing in a timely manner (the Depositary having no obligation to take any further action if the request shall not have been received by the Depositary at least thirty (30) days prior to the date of such vote or meeting), at the Company’s expense and provided no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a statement that the Holders at the close of business on the ADS Record Date will be entitled, subject to any applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of or governing the Deposited Securities (which provisions, if any, shall be summarized in pertinent part by the Company), to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by such Holder’s ADSs, and (c) a brief statement as to the manner in which such voting instructions may be given. The Company has informed the Depositary that pursuant to the terms of Brazilian law and its Estatuto Social, the Company may, in certain circumstances and regardless of the amount of a holder’s Shares in the Company, remove or restrict the voting rights accruing to such Shares where the voting rights of the owners of such Shares exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding any other provision in the Deposit Agreement or any ADR, the Company may instruct the Depositary to, and the Depositary may, and upon such instruction from the Company shall use commercially practicable efforts to, remove or restrict the voting rights accruing to those ADSs where the Depositary is timely informed by the Company that the direct or indirect voting rights of certain Holders and/or Beneficial Owners of ADSs exceed the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and restrict, in such manner as it deems commercially practicable, any other action or instruction of any Holder or Beneficial Owner of ADSs directly, or indirectly through the Depositary or the Custodian, that may result in a breach of the prohibition on shareholder agreements entered into with the intent to exceed any such limits imposed under applicable Brazilian law and/or the Estatuto Social of the Company. Notwithstanding anything contained in the Deposit Agreement or any ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders a notice that provides Holders with, or otherwise publicizes to Holders, instructions on how to retrieve such materials or receive such materials upon request (e.g., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials). Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Deposit Agreement, the Estatuto Social of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs in accordance with such voting instructions. The Depositary and the Company may require a Holder (as Beneficial Owner or on behalf of the applicable Beneficial Owner) of ADSs who provides voting instructions to the Depositary to certify to the Company and the Depositary that (i) the Beneficial Owner of such ADSs does not own, directly or indirectly, shares, and/or does not and will not exercise voting rights, in excess of the limits imposed by applicable Brazilian law and/or the Estatuto Social of the Company, and (ii) the Beneficial Owner of such ADSs has not entered into any agreement with the intent to exceed the limits on ownership of Shares and/or voting rights imposed by applicable Brazilian law and/or the Estatuto Social. Failure by a Holder to provide such certification (if required by the Company and the Depositary) may invalidate any voting instructions received by the Depositary from such Holder. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted (except as otherwise contemplated herein). Neither the Depositary nor the Custodian shall under any circumstances exercise any discretion as to voting and neither the Depositary nor the Custodian shall vote, attempt to exercise the right to vote, or in any way make use of, for purposes of establishing a quorum or otherwise, the Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder (unless otherwise specified in the notice distributed to Holders) to have instructed the Depositary to vote in favor of the items set forth in such voting instructions. Notwithstanding anything else contained herein, the Depositary shall, if so requested in writing by the Company, represent all Deposited Securities (whether or not voting instructions have been received in respect of such Deposited Securities from Holders as of the ADS Record Date) for the sole purpose of establishing quorum at a meeting of shareholders. Notwithstanding anything else contained in the Deposit Agreement or any ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.”.
(d) Paragraph (25) of the form of ADR attached as Exhibit A to the Deposit Agreement and in each of the ADRs issued and outstanding under the terms of the Deposit Agreement is hereby amended as of the Effective Date by deleting such Article in its entirety and inserting the following in its stead:
Appears in 1 contract
