EXHIBIT 4.1
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COMPANHIA DE SANEAMENTO DO PARANA -- SANEPAR
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF ____________, 2002
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS ........................................................................................... 3
SECTION 1.1 American Depositary Shares ....................................................................... 3
SECTION 1.2 Article; Section ................................................................................. 3
SECTION 1.3 Commission ....................................................................................... 3
SECTION 1.4 Company .......................................................................................... 3
SECTION 1.5 Custodian ........................................................................................ 4
SECTION 1.6 CVM .............................................................................................. 4
SECTION 1.7 Deposit Agreement ................................................................................ 4
SECTION 1.8 Depositary; Corporate Trust Office ............................................................... 4
SECTION 1.9 Deposited Securities ............................................................................. 4
SECTION 1.10 Dollars .......................................................................................... 5
SECTION 1.11 Estatuto Social .................................................................................. 5
SECTION 1.12 Foreign Registrar ................................................................................ 5
SECTION 1.13 Owner ............................................................................................ 5
SECTION 1.14 Receipts ......................................................................................... 5
SECTION 1.15 Registrar ........................................................................................ 5
SECTION 1.16 Restricted Securities ............................................................................ 5
SECTION 1.17 Securities Act ................................................................................... 6
SECTION 1.18 Shares ........................................................................................... 6
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS ....... 6
SECTION 2.1 Form and Transferability of Receipts ............................................................. 6
SECTION 2.2 Deposit of Shares ................................................................................ 8
SECTION 2.3 Execution and Delivery of Receipts ............................................................... 9
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts ....................................... 10
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares ................................................... 11
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender of Receipts ........................ 12
SECTION 2.7 Lost Receipts, etc. .............................................................................. 13
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts ............................................. 14
SECTION 2.9 Pre-Release of Receipts .......................................................................... 14
SECTION 2.10 Maintenance of Records ........................................................................... 15
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS ................................................. 16
SECTION 3.1 Filing Proofs, Certificates and Other Information ................................................ 16
SECTION 3.2 Liability of Owner for Taxes ..................................................................... 16
SECTION 3.3 Warranties on Deposit of Shares .................................................................. 17
SECTION 3.4 Regulatory Compliance; Information Requests ...................................................... 17
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ARTICLE 4. THE DEPOSITED SECURITIES .............................................................................. 18
SECTION 4.1 Cash Distributions ............................................................................... 18
SECTION 4.2 Distributions Other Than Cash, Shares or Rights .................................................. 19
SECTION 4.3 Distributions in Shares .......................................................................... 20
SECTION 4.4 Rights ........................................................................................... 20
SECTION 4.5 Conversion of Foreign Currency ................................................................... 23
SECTION 4.6 Fixing of Record Date ............................................................................ 24
SECTION 4.7 Voting of Deposited Securities ................................................................... 25
SECTION 4.8 Changes Affecting Deposited Securities ........................................................... 26
SECTION 4.9 Reports .......................................................................................... 27
SECTION 4.10 Lists of Owners .................................................................................. 27
SECTION 4.11 Withholding ...................................................................................... 27
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY ......................................................... 28
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary ....................................... 28
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the Company .............................. 29
SECTION 5.3 Obligations of the Depositary, the Custodian and the Company ..................................... 30
SECTION 5.4 Resignation and Removal of the Depositary ........................................................ 31
SECTION 5.5 The Custodian .................................................................................... 32
SECTION 5.6 Notices and Reports .............................................................................. 33
SECTION 5.7 Distribution of Additional Shares, Rights, etc. .................................................. 34
SECTION 5.8 Indemnification .................................................................................. 34
SECTION 5.9 Charges of Depositary ............................................................................ 37
SECTION 5.10 Retention of Depositary Documents ................................................................ 39
SECTION 5.11 Exclusivity ...................................................................................... 39
SECTION 5.12 List of Restricted Securities Owners ............................................................. 39
ARTICLE 6. AMENDMENT AND TERMINATION ............................................................................. 40
SECTION 6.1 Amendment ........................................................................................ 40
SECTION 6.2 Termination ...................................................................................... 40
ARTICLE 7. MISCELLANEOUS ......................................................................................... 42
SECTION 7.1 Counterparts ..................................................................................... 42
SECTION 7.2 No Third Party Beneficiaries ..................................................................... 42
SECTION 7.3 Severability ..................................................................................... 42
SECTION 7.4 Holders and Owners as Parties; Binding Effect .................................................... 42
SECTION 7.5 Notices .......................................................................................... 42
SECTION 7.6 Governing Law .................................................................................... 43
SECTION 7.7 Compliance with U.S. Securities Laws ............................................................. 44
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for Service of Process .......................... 44
SECTION 7.9 Waiver of Immunities ............................................................................. 44
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ______________, 2002 among COMPANHIA
DE SANEAMENTO DO PARANA - SANEPAR incorporated under the laws of the Federative
Republic of Brazil (herein called, together with its successors, the "Company"),
THE BANK OF NEW YORK, a New York banking corporation (herein called the
Depositary), and all Owners and holders from time to time of American Depositary
Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and between the parties hereto as follows:
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ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an
"Article" or "Articles" or to a "Section" or "Sections", such references shall
mean an article or articles or a section or sections of this Deposit Agreement,
unless otherwise required by the context.
SECTION 1.3 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.4 Company.
The term "Company" shall mean Companhia de Saneamento do Parana -
SANEPAR, incorporated under the laws of the Federative Republic of Brazil, and
its successors.
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SECTION 1.5 Custodian.
The term "Custodian" shall mean the Sao Paulo, Brazil office of
Banco Itau S.A., as agent of the Depositary for the purposes of this Deposit
Agreement, and any other firm or corporation which may hereafter be appointed by
the Depositary pursuant to the terms of Section 5.5.
SECTION 1.6 CVM.
The term "CVM" shall mean the Comissao de Valores Mobiliarios, or
any successor entity.
SECTION 1.7 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.8 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.9 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.5.
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SECTION 1.10 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.11 Estatuto Social.
The term "Estatuto Social" shall mean the constitutive document of
the Company.
SECTION 1.12 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.13 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.14 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares.
SECTION 1.15 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.16 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 under the Securities Act) in a
transaction or chain of transactions not involving any public offering or which
are subject to resale limitations under Regulation D under that Act or both, or
which are held by an officer, director (or
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persons performing similar functions) or other affiliate of the Company, or
which would require registration under the Securities Act in connection with the
offer and sale thereof in the United States, or which are subject to other
restrictions on sale or deposit under the laws of the United States or Brazil,
or under a shareholder agreement or Estatuto Social of the Company.
SECTION 1.17 Securities Act.
The term "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.18 Shares.
The term "Shares" shall mean non-voting preferred shares in
registered form of the Company, heretofore validly issued and outstanding and
fully paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or interim certificates representing such Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt so
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executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; provided, however, that the Company and the
Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes, and neither
the Depositary nor the Company shall have any obligation or be subject to any
liability under this Deposit Agreement to any holder of a Receipt unless such
holder is the Owner thereof.
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SECTION 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to the Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied, to the extent applicable, by evidence
satisfactory to the Depositary that any necessary approval has been granted by
any governmental body in Brazil which is then performing the function of the
regulation of currency exchange. If required by the Depositary, Shares presented
for deposit at any time, whether or not the transfer books of the Company or the
Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian of any dividend, or
right to subscribe for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of such deposited Shares, or in lieu thereof, such agreement
of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to the Custodian of a certificate or certificates
for Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present
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such certificate or certificates to the Company or the Foreign Registrar, if
applicable, for transfer and recordation of the Shares being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by the
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by the Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees and expenses of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.9, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
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SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may, with the approval of the Company, such approval
not to be unreasonably withheld, appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. Each co-transfer agent
appointed under this Section 2.4 shall give notice in writing to the Company and
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Owners or persons entitled to
Receipts, but only to the extent that the Depositary would in similar
circumstances be entitled so to require, and will be entitled to protection and
indemnity to the same extent as the Depositary.
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SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.9 and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Owner of such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) Shares in the name of such Owner or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him and (b) any other securities, property and
cash to which such Owner is then entitled in respect of such Receipts to such
Owner or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the Sao Paulo, Brazil office
of such Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms
and conditions of this Deposit Agreement, to or upon the written order of the
person or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the
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American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates, if applicable, and other proper
documents of title for, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt to the Depositary for delivery at
the Corporate Trust Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Owner, by cable, telex or
facsimile transmission.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any laws or governmental regulations relating
to Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and any such reasonable regulations, if any, the Depositary may
establish consistent with the provisions of this Deposit Agreement, including,
without limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally
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may be suspended, during any period when the transfer books of the Depositary
are closed, or if any such action is deemed necessary or advisable by the
Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or for any other reason, subject
to the provisions of Section 7.7 hereof. Notwithstanding any other provision of
this Deposit Agreement or the Receipts, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may not be suspended subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
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SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9 Pre-Release of Receipts.
The Depositary may issue Receipts against delivery by the Company
(or any agent of the Company recording Share ownership) of rights to receive
Shares from the Company (or any such agent of the Company). No such issue of
Receipts will be deemed a "Pre-Release" that is subject to the restrictions of
the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial rights, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems
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appropriate. The number of Shares not deposited but represented by American
Depositary Shares outstanding at any time as a result of Pre-Releases will not
normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems reasonably appropriate, and may, with the
prior written consent of the Company, change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into hereunder with any particular
Pre-Releasee on a case-by-case basis as the Depositary deems appropriate. For
purposes of enabling the Depositary to fulfill its obligations to the Owners
under the Deposit Agreement, the collateral referred to in clause (b) above
shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain or cause its agents to maintain
records of all Receipts surrendered and Deposited Securities withdrawn under
Section 2.5, substitute Receipts delivered under Section 2.7 and canceled or
destroyed receipts under Section 2.8, in keeping with procedures ordinarily
followed by stock transfer agents located in The City of New York or as required
by the laws or regulations governing the Depositary. If requested by the Company
prior to destroying any such records, the Depositary will turn such records over
to the Company upon its written request.
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ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made. The Depositary shall provide the Company
upon its reasonable written request with copies of any information or other
material that the Depositary receives pursuant to this Section 3.1, unless such
disclosure is prohibited by law.
SECTION 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner of such Receipt to the Depositary. The Depositary
may refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other
- 16 -
governmental charge, and the Owner of such Receipt shall remain liable for any
deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor, if applicable, are validly issued, fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person to the public are not restricted under the Securities Act. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
SECTION 3.4 Regulatory Compliance; Information Requests.
Each of the Depositary and the Company hereby confirms to the other
that for as long as the Deposit Agreement is in effect, it shall furnish the CVM
and the Central Bank of Brazil, at any time and within the period that may be
determined, with any information and documents related to the American
Depositary Receipt program and the Receipts issued hereunder. In the event that
the Depositary or the Custodian shall be advised in writing by reputable
independent Brazilian counsel that the Depositary or Custodian reasonably could
be subject to criminal, or material, as reasonably determined by the Depositary,
civil, liabilities as a result of the Company having failed to provide such
information or documents reasonably available only through the Company, the
Depositary shall have the right to terminate this Deposit Agreement, upon at
least 30 days' prior notice to the Owners and the Company, and the Depositary
shall not be subject to any liability hereunder on account of such termination
or such determination. The effect of any such termination of this Deposit
Agreement shall be as provided in Section 6.2.
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The Company or the Depositary may from time to time request Owners
to provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts and the nature and extent of such interest. Each
Owner agrees to provide any information requested by the Company or the
Depositary pursuant to this Section 3.4. The Depositary agrees to use reasonable
efforts to comply with reasonable written instructions received from the Company
requesting that the Depositary forward any such requests to the Owners and to
forward to the Company any such responses to such requests received by the
Depositary. If the Company requests information from the Depositary in its
capacity as the registered owner of the Shares, the obligations of the
Depositary shall be limited to disclosing to the Company the information
contained in the Register.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution on any Deposited Securities, the Depositary shall, subject to
the provisions of Section 4.5, convert such dividend or distribution into
Dollars and shall, as promptly as practicable, distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Section
5.9 hereof, if applicable) to the Owners entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that in the event that the Company or
the Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution an amount on account of taxes, the
amount distributed to the Owner of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Company or its agent will remit to the appropriate
governmental agency in Brazil all amounts withheld
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and owing to such agency. The Depositary will forward to the Company or its
agent such information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
agencies, and the Depositary or the Company or its agent may file any such
reports necessary to obtain benefits under the applicable tax treaties for the
Owners of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever
the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary, after consultation with
the Company to the extent reasonably practicable, shall cause the securities or
property received by it to be distributed as promptly as practicable to the
Owners entitled thereto, after deduction or upon payment of any fees and
expenses of the Depositary or any taxes or other governmental charges, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act in order to be distributed to Owners or holders) the Depositary
deems such distribution not to be feasible, the Depositary, after consultation
with the Company to the extent reasonably practicable, may adopt such method as
it may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Section 5.9) shall be distributed by the Depositary to the Owners entitled
thereto as in the case of a distribution received in cash.
- 19 -
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may with the
written approval of the Company, and shall if the Company shall so request,
distribute to the Owners of outstanding Receipts entitled thereto, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively, additional Receipts evidencing an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares evidenced by Receipts, including the
withholding of any tax or other governmental charge as provided in Section 4.11
and the payment of fees of the Depositary as provided in Section 5.9. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions described in Section 4.1. Alternatively, if additional Receipts
are not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
SECTION 4.4 Rights.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall determine, in
consultation with the Company to the extent reasonably practicable, the
procedure to be followed in making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or under
applicable law or for any other reason, the Depositary may not either make such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights to
lapse.
- 20 -
If at the time of the offering of any rights the Depositary determines, after
consultation with the Company to the extent reasonably practicable, that it is
lawful and feasible to make such rights available to all Owners or to certain
Owners but not to other Owners, the Depositary may distribute to any Owner to
whom it determines the distribution to be lawful and feasible, in proportion to
the number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares or
other securities to be received upon the exercise of the rights, and upon
payment of the fees and expenses of the Depositary and any other charges as set
forth in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase the Shares or other securities, as
the case may be, and the Company shall cause the Shares so purchased to be
delivered to the Depositary on behalf of such Owner. In the case of a purchase
of Shares, the Depositary, as agent for such Owner, will cause the Shares so
purchased to be deposited pursuant to Section 2.2 of this Deposit Agreement, and
shall, pursuant to Section 2.3 of this Deposit Agreement, execute and deliver
Receipts to such Owner. In the case of a distribution of Shares pursuant to the
second paragraph of this section, such
- 21 -
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its reasonable discretion that it is
not lawful and feasible to make such rights available to all or certain Owners,
it may sell, and at the request of the Company shall use its reasonable efforts
to sell, the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.9 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act with respect to a distribution to Owners
or are registered under the provisions of such Act; provided that nothing in
this Deposit Agreement shall create any obligation on the part of the Depositary
or the Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
- 22 -
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive Foreign
Currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the Foreign Currency so received can in the reasonable judgment of the
Depositary be converted on a reasonable basis into Dollars and the resulting
Dollars transferred to the United States, the Depositary shall, as promptly as
practicable, convert or cause to be converted, by sale or in any other manner
that it may determine, such Foreign Currency into Dollars, and such Dollars
shall be distributed, as promptly as practicable, to the Owners entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
which entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment
any Foreign Currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the reasonable opinion of the
Depositary is not obtainable, or if any such
- 23 -
approval or license is not obtained within a reasonable period as determined by
the Depositary after application has been made therefore, the Depositary may
distribute the Foreign Currency (or an appropriate document evidencing the right
to receive such Foreign Currency) received by the Depositary to, or in its
discretion may hold such Foreign Currency uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled to receive
the same.
If any such conversion of Foreign Currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the Foreign Currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
SECTION 4.6 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date, which record date shall, to
the extent applicable and to the extent practicable, be the same date as the
corresponding record date fixed by the Company for the underlying Shares or as
close thereto as practicable (a) for the determination of the Owners who shall
be (i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares. Subject
to the provisions of Sections 4.1 through 4.5 and to the other terms and
conditions of this Deposit Agreement, the Owners on such record date shall be
entitled, as the case may be, to receive the amount
- 24 -
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
SECTION 4.7 Voting of Deposited Securities.
As of the date of the Deposit Agreement, the Shares do not give the
holders thereof any voting rights, except in certain limited circumstances
prescribed by Brazilian law. If in the future, the terms of the Shares should be
revised or amended to provide for voting rights, or should such Shares obtain
voting rights on account of the occurrence of any event or change, then, upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company the Depositary shall, as soon
as practicable thereafter, mail to the Owners a notice, the form of which notice
shall be approved by the Company, which shall contain (a) such information as is
contained in such notice of meeting, and (b) a statement that the Owners as of
the close of business on a specified record date will be entitled, subject to
any applicable provision of Brazilian law and of the Estatuto Social of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instruction may be given or deemed given in accordance with
the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated to the Company.
Upon the written request of an Owner on such record date, received on or before
the date established by the Depositary for such purpose, (the "Instruction
Date") the Depositary shall endeavor, in so far as practicable, to vote or cause
to be voted the amount of Shares or other Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or
- 25 -
deemed instructions. If no instructions are received by the Depositary from any
Owner with respect to any of the Deposited Securities represented by the
American Depositary Shares evidenced by such Owner's Receipts on or before the
Instruction Date, the Depositary shall deem such Owner to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
with respect to such Deposited Securities and the Depositary shall give a
discretionary proxy to a person designated by the Company to vote such Deposited
Securities, provided, that no such instruction shall be given with respect to
any matter as to which the Company informs the Depositary (and the Company
agrees to provide such information as promptly as practicable in writing) that
(x) the Company does not wish such proxy given, (y) substantial opposition
exists or (z) such matter materially and adversely affects the rights of holders
of Shares.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary or the Custodian in exchange for or in conversion of
or in respect of Deposited Securities, shall be treated as new Deposited
Securities under this Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities, if any,
the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may with the written approval of the Company, and shall
if the Company
- 26 -
shall so request, execute and deliver additional Receipts as in the case of a
dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.9 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners copies of such
reports furnished by the Company pursuant to Section 5.6. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall furnish
to it a list, as of a recent date, of the names, addresses and holdings of
American Depositary Shares by all persons in whose names Receipts are registered
on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively. The Depositary will forward to the Company such information
- 27 -
from its records as the Company may reasonably request to enable the Company to
file necessary reports with governmental authorities or agencies, and either the
Company or the Depositary may file any such reports necessary to obtain benefits
under any applicable tax treaties for Owners.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Owners, provided that such inspection
shall not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder with notice to the Company if such closing of the transfer
books is outside the ordinary course of business or at the reasonable written
request of the Company, provided that any such closing of transfer books shall
be subject to the provisions of Section 7.7, which limits the suspension of
withdrawals of Shares.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
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The Company shall have the right on reasonable written notice to the
Depositary and during the Depositary's normal business hours to inspect the
transfer and registration records of the Depositary relating to the Receipts, to
take copies thereof and to require the Depositary and any other co-registrars,
at the Company's expenses, to supply copies of such portions of such records as
the Company may reasonably request.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or holder of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Estatuto Social of the Company, or
by reason of any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or the Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, officers, employees, agents or affiliates
incur any liability to any Owner or holder of any Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, or by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.4 of the Deposit Agreement, or
for any other reason, such distribution or offering may not be made available to
Owners, and the Depositary may not dispose of such distribution or offering on
behalf of such Owners and
- 29 -
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Company.
None of the Company, its directors, officers, employees, agents or
affiliates assume any obligation nor shall they be subject to any liability
under this Deposit Agreement to Owners or holders of Receipts, except that the
Company agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
None of the Depositary, its directors, officers, employees, agents
or affiliates assume any obligation nor shall they be subject to any liability
under this Deposit Agreement to any Owner or holder of any Receipt (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
None of the Depositary nor, the Company or any of their directors,
officers, employees, agents or affiliates shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
None of the Depositary, the Company or any of their directors,
officers, employees, agents or affiliates shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be
- 30 -
competent to give such advice or information, including but not limited to any
such action or nonaction based upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties..
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
Neither the Company nor the Depositary shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act is intended by
any provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 90 days
prior written notice of such removal, which shall become effective upon the
later to occur of (i) the 90th day after delivery of the notice to the
Depositary or (ii) the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided.
- 31 -
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be
merged or consolidated shall be the successor of the Depositary without the
execution or filing of any document or any further act.
SECTION 5.5 The Custodian.
The Custodian or its successor shall be subject at all times
and in all respects to the directions of the Depositary and shall be responsible
solely to it. The Custodian may resign and be discharged from its duties
hereunder by notice of such resignation delivered to the Depositary at least 30
days prior to the date on which such resignation is to become effective. If upon
such resignation there shall be no Custodian acting hereunder, the Depositary
shall, promptly after receiving such notice, appoint a substitute custodian,
which shall thereafter be the Custodian hereunder. The Depositary may, after
consultation with the Company, discharge the Custodian any time upon notice to
the Custodian being discharged. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may, after
consultation with the Company, appoint a substitute custodian, which shall
thereafter be the Custodian
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hereunder. Upon demand of the Depositary, the Custodian shall deliver such of
the Deposited Securities or evidence of ownership and title of the Deposited
Securities held by it as are requested of it to the substitute custodian. The
substitute custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary. The Depositary agrees with the Company that at no
time shall there be more than one Custodian acting in connection with this
Deposit Agreement. Promptly after any such change in Custodian, the Depositary
shall give notice thereof in writing to the Company.
Upon the appointment of any successor depositary hereunder,
the Custodian then acting hereunder shall forthwith become, without any further
act or writing, the agent hereunder of such successor depositary, and the
appointment of such successor depositary shall in no way impair the authority of
the Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of the Custodian, execute and deliver to
the Custodian all such instruments as may be proper to give to the Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.6 Notices and Reports.
On or before the first date on which the Company gives notice,
by publication or otherwise, of any meeting of holders of Shares or other
Deposited Securities, or of any adjourned meeting of such holders, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights, the Company agrees to transmit to the Depositary and the
Custodian a copy of the notice thereof in the form given or to be given to
holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English and
the prompt transmittal, which may be by email or facsimile, by the Company to
the Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Company to holders of
its Shares. If requested in writing by
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the Company, the Depositary will arrange for the mailing of copies of such
notices, reports and communications to all Owners. The Company will timely
provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3)
securities convertible into Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Company will promptly furnish to the
Depositary, unless waived by the Depositary, a written opinion from U.S. counsel
for the Company, which counsel shall be satisfactory to the Depositary, stating
whether or not the Distribution requires a Registration Statement under the
Securities Act to be in effect prior to making such Distribution available to
Owners entitled thereto. If in the opinion of such counsel a Registration
Statement is required, such counsel shall furnish to the Depositary a written
opinion as to whether or not, to the best of its knowledge after due inquiry,
there is a Registration Statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the
Company nor any company controlled by, controlling or under common control with
the Company will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate, unless a
registration statement is in effect as to such Shares under the Securities Act
of 1933 or the offer or sale of such Shares is exempt from registration under
the provisions of the Securities Act or the transaction is exempt under such
Act.
SECTION 5.8 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
officers, employees, agents and affiliates and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the reasonable fees
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and expenses of counsel) which may arise out of any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or out of acts performed or
omitted, in accordance with the provisions of this Deposit Agreement and of the
Receipts, as the same may be amended, modified or supplemented from time to
time, (i) by either the Depositary or the Custodian or their respective
directors, officers, employees, agents and affiliates, except for any liability
or expense arising out of the negligence or bad faith of either of them, and
except to the extent that such liability or expense arises out of information
relating to the Depositary or the Custodian, as applicable, furnished in writing
to the Company by the Depositary, expressly for use in any registration
statement, proxy statement, prospectus (or placement memorandum) or preliminary
prospectus (or preliminary placement memorandum) relating to the Shares or the
Receipts, or omissions from such information, and not altered, or (ii) by the
Company or any of its directors, officers, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing and not
materially changed or altered by the Company expressly for use in any of
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the foregoing documents, or, (ii) if such information is provided, the failure
to state a material fact necessary to make the information provided not
misleading.
The Depositary agrees to indemnify the Company, its directors,
officers, employees, agents and affiliates and hold them harmless from any
liability or expense (including but not limited to the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or its Custodian or their respective directors, officers, employees,
agents and affiliates due to their negligence or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than ten (10) days after receipt of notice
of such Proceeding) notify the party obligated to provide such indemnification
(the "Indemnitor") of such Proceeding. The failure of the Indemnitee to so
notify the Indemnitor shall not impair the Indemnitee's ability to seek
indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in subparagraph (b) below
or there are no other defenses available to Indemnitee as specified in
subparagraph (d) below, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnitee (in which case all attorney's fees and expenses
shall be borne by the Indemnitor and the Indemnitor shall in good faith defend
the Indemnitee). The Indemnitee shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith
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concluded that there is a conflict of interest between the Indemnitor and the
Indemnitee in the conduct of the defense of such action, (c) the Indemnitor
fails, within ten (10) days prior to the date the first response or appearance
is required to be made in such Proceeding, to assume the defense of such
Proceeding with counsel reasonably satisfactory to the Indemnitee or (d) there
are legal defenses available to Indemnitee that are different from or are in
addition to those available to the Indemnitor. No compromise or settlement of
such Proceeding may be effected by either party without the other party's
consent unless (i) there is no finding or admission of any violation of law and
no effect on any other claims that may be made against such other party and (ii)
the sole relief provided is monetary damages that are paid in full by the party
seeking the settlement. Neither party shall have any liability with respect to
any compromise or settlement effected without its consent, which shall not be
unreasonably withheld. The Indemnitor shall have no obligation to indemnify and
hold harmless the Indemnitee from any loss, expense or liability incurred by the
Indemnitee as a result of a default judgment entered against the Indemnitee
unless such judgment was entered after the Indemnitor agreed, in writing, to
assume the defense of such Proceeding.
SECTION 5.9 Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares or by any party surrendering Receipts or to
whom Receipts are issued (including, without limitation, issuance pursuant to a
stock dividend or stock split declared by the Company or an exchange of stock
regarding the Receipts or Deposited Securities or a distribution of Receipts
pursuant to Section 4.3), or by Owners, as
-37-
applicable: (1) taxes and other governmental charges, (2) such registration fees
as may from time to time be in effect for the registration of transfers of
Shares generally on the Share register of the Company or Foreign Registrar and
applicable to transfers of Shares to or from the name of the Depositary or its
nominee or the Custodian or its nominee on the making of deposits or withdrawals
hereunder, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in this Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of Foreign Currency pursuant to Section 4.5,
(5) a fee of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the execution and delivery of Receipts pursuant to Section 2.3, 4.3
or 4.4 and the surrender of Receipts pursuant to Section 2.5 or 6.2, (6) a fee
of $.02 or less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including, but not limited
to Sections 4.1 through 4.4 hereof, (7) a fee for the distribution of securities
pursuant to Section 4.2, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were Shares)
but which securities are instead distributed by the Depositary to Owners, (8) a
fee of $.02 or less per American Depositary Share (or portion thereof) for
depositary services, which will accrue on the last day of each calendar year and
which will be payable as provided in clause (9) below; provided, however, that
no fee will be assessed under this clause (8) if a fee was charged pursuant to
clause (6) above during that calendar year and (9) any other charge payable by
the Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.6 and shall
be payable at the sole discretion of the Depositary by billing such Owners for
such charge or by deducting such charge from one or more cash dividends or other
cash distributions).
The Depositary, subject to Section 2.9 hereof, may own and
deal in any class of securities of the Company and its affiliates and in
Receipts.
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SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the times permitted by the laws or regulations governing the Depositary
unless the Company requests that such papers be retained for a longer period or
turned over to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
Subject to Section 5.4, the Company agrees not to appoint any
other depositary for issuance of American Depositary Shares, as defined in
Section 1.1 hereof, so long as The Bank of New York is acting as Depositary
hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary
a list setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities and the Company shall update
that list on a regular basis. The Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder, except in accordance with the following sentence. The
Depositary shall use reasonable efforts not to accept the deposit of any Shares
by any person or entity so listed unless such person or entity delivers an
opinion, which is satisfactory to the Depositary, on which the Depositary is
entitled to rely, from recognized U.S. counsel for the Company, in such form as
may be agreed between the Company and the Depositary, that upon deposit of such
Shares such Shares and the Receipts issued in respect thereof will not be
Restricted Securities and that the offer and sale of such securities would not
require registration under the Securities Act. The Depositary may rely on such a
list or update but shall not be liable for any action or omission made in
reliance thereon.
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ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary without the consent of Owners and holders in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of thirty days after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
Owner at the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the
Company terminate this Deposit Agreement by mailing notice of such termination
to the Owners of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement by mailing notice of such termination to the
Company and the Owners of all Receipts then outstanding, such notice to be
effective on a date specified in such notice not less than 30 days after the
date thereof, if at any time 60 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4. On and after the date of termination,
the Owner of a Receipt
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will, upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.5, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges) and except as provided in Section 5.8.
Upon the termination of this Deposit Agreement, the Company
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shall be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any holder or Owner of a Receipt during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
SECTION 7.3 Severability.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Holders and Owners as Parties; Binding Effect.
The holders and Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.5 Notices.
Any and all notices to be given to the Company shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile
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transmission confirmed by letter, addressed to Companhia De Saneamento Do Parana
- SANEPAR, Rua Engenheiros Reboucas, 1376, 80215-900 Curitiba - Parana, Brazil,
Attention: Diretoria de Relacoes com Investidores or any other place which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if in English and personally delivered or sent by
mail or cable, telex or facsimile transmission confirmed by letter, addressed to
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other place which the
Depositary shall have notified the Company in writing.
Any and all notices to be given to any Owner shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by the laws of the State of New York.
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SECTION 7.7 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has under this Deposit Agreement to permit the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for
Service of Process.
The Company hereby (i) irrevocably designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, XX, XX 00000, in the State of New York,
as the Company's authorized agent upon which process may be served in any suit
or proceeding arising out of or relating to the Shares or Deposited Securities,
the American Depositary Shares, the Receipts or this Agreement, (ii) consents
and submits to the jurisdiction of any state or federal court in the State of
New York in which any such suit or proceeding may be instituted, and (iii)
agrees that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force.
SECTION 7.9 Waiver of Immunities.
To the extent that the Company or any of its properties,
assets or revenues may have or may hereafter become entitled to, or have
attributed to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or
-44-
proceeding, from the giving of any relief in any respect thereof, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, the Company, to the fullest extent
permitted by law, hereby irrevocably and unconditionally waives, and agrees not
to plead or claim, any such immunity and consents to such relief and
enforcement.
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IN WITNESS WHEREOF, COMPANHIA DE SANEAMENTO DO PARANA --
SANEPAR and THE BANK OF NEW YORK have duly executed this agreement as of the day
and year first set forth above and all Owners shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof.
COMPANHIA DE SANEAMENTO
DO PARANA -- SANEPAR
By:
--------------------
Name:
Title:
By:
--------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
--------------------
Name:
Title:
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Exhibit A to Deposit Agreement
NO.
-------------------------------
AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY SHARE
REPRESENTS TEN (10)
DEPOSITED SHARES)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR NON-VOTING PREFERRED SHARES,
WITH NO PAR VALUE OF
COMPANHIA DE SANEAMENTO DO PARANA -- SANEPAR
(INCORPORATED UNDER THE LAWS OF THE
FEDERATIVE REPUBLIC OF BRAZIL)
The Bank of New York as depositary (hereinafter called the
"Depositary"), hereby certifies that , or registered assigns IS THE
OWNER OF
AMERICAN DEPOSITARY SHARES
representing deposited non-voting preferred shares, with no par value (herein
called "Shares"), of Companhia De Saneamento Do Parana -- SANEPAR, incorporated
under the laws of the Federative Republic of Brazil (herein called the
"Company"). At the date hereof, each American Depositary Share represents ten
Shares which are either deposited or subject to deposit under the deposit
agreement at the Sao Paulo, Brazil office of Banco Itau S.A. (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive
office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of , 2002 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and become bound by all the
terms and conditions thereof. The Deposit Agreement sets forth the rights of
Owners and holders of the Receipts and the rights and duties of the Depositary
in respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property, and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Depositary's Corporate Trust Office in New York City and at the office of the
Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms not defined herein shall have the
meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) Shares in the name of the Owner hereof or as ordered
by him or by certificates properly endorsed or accompanied by proper instruments
of transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of this
Receipt to such Owner or as ordered by him. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may be suspended only for (i) temporary delays caused by closing the
transfer books of the Depositary or the Company or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities.
-2-
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any laws or governmental regulations relating to Receipts or American Depositary
Shares or to the withdrawal of Deposited Securities and any such reasonable
regulations, if any, the Depositary may establish consistent with the provisions
of the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to Article (22) hereof. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act, unless a registration statement is in
effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented hereby, such tax
or other governmental charge shall be payable by the Owner hereof to the
Depositary. The Depositary may refuse to effect any transfer of this Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner
hereof any part or all of the Deposited Securities represented by
-3-
the American Depositary Shares evidenced by this Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner hereof shall remain liable
for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor, if applicable, are validly issued, fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person to the public are not restricted under the Securities Act. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made. The Depositary shall provide the Company
upon its reasonable written request with copies of any information or other
material that the Depositary receives pursuant to this Article 6, unless such
disclosure is prohibited by law. No Share shall be accepted for deposit unless
accompanied, to the extent applicable, by evidence satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in Brazil which is then performing the function of the regulation of currency
exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing
-4-
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3 of
the Deposit Agreement), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the Deposit
Agreement, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in the Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of Foreign Currency pursuant to Section 4.5
of the Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary
Shares (or portion thereof) for the execution and delivery of Receipts pursuant
to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and the surrender of
Receipts pursuant to Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee of
$.02 or less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including, but not limited
to Sections 4.1 through 4.4 of the Deposit Agreement, (7) a fee for the
distribution of securities pursuant to Section 4.2 of the Deposit Agreement,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners, (8) a fee of $.02 or less per American
Depositary Share (or portion thereof)for depositary services, which will accrue
on the last day of each calendar year and which will be payable as provided in
clause (9) below; provided, however, that no fee will be assessed under this
clause (8) if a fee was charged pursuant to clause (6) above during that
calendar year and (9) any other charge payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.6 of the Deposit Agreement and shall
be payable at the sole discretion of the Depositary by billing such Owners for
such charge or by deducting such charge from one or more cash dividends or other
cash distributions).
The Depositary, subject to Section 2.9 of the Deposit Agreement, may
own and deal in any class of securities of the Issuer and its affiliates and in
Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against delivery by the Company (or
any agent of the Company recording Share ownership) of rights to receive Shares
from the Company (or any such agent of the Company). No such issue of Receipts
will be deemed a "Pre-Release" that is subject to the restrictions of the
following paragraph.
-5-
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner
of this Receipt by accepting or holding the same consents and agrees, that title
to this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable
-6-
by delivery with the same effect as in the case of a negotiable instrument;
provided, however, that the Company and the Depositary, notwithstanding any
notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Deposit Agreement to any
holder of a Receipt unless such holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports furnished by the Company pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts, provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
-7-
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if at the time
of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into Dollars and shall distribute, as
promptly as practicable, the amount thus received (net of the fees and expenses
of the Depositary as provided in the Deposit Agreement, if applicable) to the
Owners of Receipts entitled thereto, provided, however, that in the event that
the Company or the Depositary shall be required to withhold and does withhold
from such cash dividend or such other cash distribution in respect of any
Deposited Securities an amount on account of taxes, the amount distributed to
the Owners of the Receipts evidencing American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary, after consultation with the Company to the extent reasonably
practicable, shall cause the securities or property received by it to be
distributed as promptly as practicable to the Owners of Receipts entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charges, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary, after consultation with the
Company to the extent reasonably practicable, may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.9 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may with the
written approval of the Company, and shall if the Company shall so request,
distribute to the Owners of outstanding Receipts entitled thereto, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees of the
-8-
Depositary as provided in Section 5.9 of the Deposit Agreement. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions set forth in the Deposit Agreement. Alternatively, if additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive Foreign
Currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the Foreign Currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such Foreign
Currency into Dollars, and such Dollars shall be distributed, as promptly as
practicable, to the Owners entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such Dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
Foreign Currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary after
-9-
application has been made therefore, the Depositary may distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) received by the Depositary to, or in its discretion may hold
such Foreign Currency uninvested and without liability for interest thereon for
the respective accounts of, the Owners entitled to receive the same.
If any such conversion of Foreign Currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the Foreign Currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall determine, in
consultation with the Company to the extent reasonably practicable, the
procedure to be followed in making such rights available to any Owners or in
disposing of such rights on behalf of any Owners and making the net proceeds
available to such Owners or, if by the terms of such rights offering or under
applicable law or for any other reason, the Depositary may not either make such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights to
lapse. If at the time of the offering of any rights the Depositary determines,
after consultation with the Company to the extent reasonably practicable, that
it is lawful and feasible to make such rights available to all Owners or to
certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if
an Owner of Receipts requests the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares of
such Owner hereunder, the Depositary will make such rights available to such
Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount
-10-
equal to the purchase price of the Shares or other securities to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares or other securities, as the case may be, and the Company
shall cause the Shares so purchased to be delivered to the Depositary on behalf
of such Owner. In the case of a purchase of Shares, the Depositary, as agent for
such Owner, will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the
Deposit Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution of Shares pursuant to the second paragraph of this Article 14, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its reasonable discretion that it is
not lawful and feasible to make such rights available to all or certain Owners,
it may sell, and at the request of the Company shall use its reasonable efforts
to sell, the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.9 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act with respect to a distribution to Owners
or are registered under the provisions of such Act; provided that nothing in the
Deposit Agreement shall create any obligation on the part of the Depositary or
the Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
-11-
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date, which record date shall, to
the extent applicable and to the extent practicable, be the same date as the
corresponding record date fixed by the Company for the underlying Shares or as
close thereto as practicable (a) for the determination of the Owners who shall
be (i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares, subject
to the provisions of Sections 4.1 through 4.5 and to the other terms and
conditions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
As of the date of the Deposit Agreement, the Shares do not give the
holders thereof any voting rights, except in certain limited circumstances
prescribed by Brazilian law. If in the future, the terms of the Shares should be
revised or amended to provide for voting rights, or should such Shares obtain
voting rights on account of the occurrence of any event or change, then, upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company the Depositary shall, as soon
as practicable thereafter, mail to the Owners a notice, the form of which notice
shall be approved by the Company, which shall contain (a) such information as is
contained in such notice of meeting, and (b) a statement that the Owners as of
the close of business on a specified record date will be entitled, subject to
any applicable provision of Brazilian law and of the Estatuto Social of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instruction may be given or deemed given in accordance with
the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated to the Company.
Upon the written request of an Owner on such record date, received on or before
the date established by the Depositary for such purpose, (the "Instruction
Date") the Depositary shall endeavor, in so far as practicable, to vote or cause
to be voted the amount of Shares or other Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or deemed
instructions. If no instructions are received by the Depositary from any Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such
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Owner's Receipts on or before the Instruction Date, the Depositary shall deem
such Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided, that no such instruction
shall be given with respect to any matter as to which the Company informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
if any, the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may with the written approval of the Company, and
shall if the Company shall so request, execute and deliver additional Receipts
as in the case of a dividend in Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or holder of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Estatuto Social of the Company, or
by reason of any provision of any Securities issued or distributed by the
Company, or any Offering or distribution thereof or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of the Deposit Agreement or Deposited Securities it is
provided shall be done or performed; nor shall the
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Depositary or the Company incur any liability to any Owner or holder of a
Receipt by reason of any non-performance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of the Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in the Deposit Agreement.
Where, by the terms of a distribution pursuant to Sections 4.1, 4.2 or 4.3 of
the Deposit Agreement, or an offering or distribution pursuant to Section 4.4 of
the Deposit Agreement, or for any other reason, such distribution or offering
may not be made available to Owners of Receipts, and the Depositary may not
dispose of such distribution or offering on behalf of such Owners and make the
net proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
None of the Company, its directors, officers, employees, agents or affiliates
assume any obligation nor shall they be subject to any liability under the
Deposit Agreement to Owners or holders of Receipts, except that the Company
agrees to perform its obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. None of the Depositary, its
directors, officers, employees, agents or affiliates assume any obligation nor
shall they be subject to any liability under the Deposit Agreement to any Owner
or holder of any Receipt (including, without limitation, liability with respect
to the validity or worth of the Deposited Securities), except that the
Depositary agrees to perform its obligations specifically set forth in the
Deposit Agreement without negligence or bad faith. None of the Depositary nor,
the Company or any of their directors, officers, employees, agents or affiliates
shall be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or in respect of the
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability shall be
furnished as often as may be required, and the Custodian shall not be under any
obligation whatsoever with respect to such proceedings, the responsibility of
the Custodian being solely to the Depositary. None of the Depositary, the
Company or any of their directors, officers, employees, agents or affiliates
shall be liable for any action or nonaction by it in reliance upon the advice of
or information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or any other person believed by it in good faith to be
competent to give such advice or information, including but not limited to any
such action or nonaction based upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Depositary shall not be liable for any acts
or omissions made by a successor depositary whether in connection with a
previous act or omission of the Depositary or in connection with any matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. Neither the Company nor the Depositary shall be responsible
for any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any such vote is cast or the effect of
any such vote, provided that any such action or nonaction is in good faith. The
Company agrees to indemnify the Depositary, its directors, officers,
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employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or out of acts
performed or omitted, in accordance with the provisions of the Deposit Agreement
and of the Receipts, as the same may be amended, modified or supplemented from
time to time, (i) by either the Depositary or the Custodian or their respective
directors, officers, employees, agents and affiliates, except for any liability
or expense arising out of the negligence or bad faith of either of them, and
except to the extent that such liability or expense arises out of information
relating to the Depositary or the Custodian, as applicable, furnished in writing
to the Company by the Depositary, expressly for use in any registration
statement, proxy statement, prospectus (or placement memorandum) or preliminary
prospectus (or preliminary placement memorandum) relating to the Shares or the
Receipts, or omissions from such information, and not altered, or (ii) by the
Company or any of its directors, officers, employees, agents and affiliates. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 90 days prior written
notice of such removal, which shall become effective upon the later to occur of
the (i) 90th day after delivery of the notice to the Depositary or (ii) the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners of Receipts to do so,
it may, after consultation with the Company, appoint a substitute custodian.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary without the consent of Owners and holders in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and
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to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding, such notice to be effective on a date
specified in such notice not less than 30 days after the date thereof, if at any
time 60 days shall have expired after the Depositary shall have delivered to the
Company a written notice of its election to resign and a successor depositary
shall not have been appointed and accepted its appointment as provided in the
Deposit Agreement. On and after the date of termination, the Owner of a Receipt
will, upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.5 of the Deposit Agreement and (c) payment of
any applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities then held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds
of any such sale, together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro rata benefit of the
Owners of Receipts which have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in
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accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges) and except as provided in Section 5.8
of the Deposit Agreement. Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary under Sections 5.8 and 5.9 of the
Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to
the contrary, the Company and the Depositary each agrees that it will not
exercise any rights it has under the Deposit Agreement to permit the withdrawal
or delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
23. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS.
The Company hereby (i) irrevocably designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, XX, XX 00000, in the State of New York,
as the Company's authorized agent upon which process may be served in any suit
or proceeding arising out of or relating to the Shares or Deposited Securities,
the American Depositary Shares, the Receipts or this Agreement, (ii) consents
and submits to the jurisdiction of any state or federal court in the State of
New York in which any such suit or proceeding may be instituted, and (iii)
agrees that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery of
the Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force.
24. WAIVER OF IMMUNITIES.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, this Receipts or the Deposit Agreement, the Company,
to the fullest
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extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
25. REGULATORY COMPLIANCE; INFORMATION REQUESTS.
Each of the Depositary and the Company hereby confirms to the other
that for as long as the Deposit Agreement is in effect, it shall furnish the CVM
and the Central Bank of Brazil, at any time and within the period that may be
determined, with any information and documents related to the American
Depositary Receipt program and the Receipts issued hereunder. In the event that
the Depositary or the Custodian shall be advised in writing by reputable
independent Brazilian counsel that the Depositary or Custodian reasonably could
be subject to criminal, or material, as reasonably determined by the Depositary,
civil, liabilities as a result of the Company having failed to provide such
information or documents reasonably available only through the Company, the
Depositary shall have the right to terminate the Deposit Agreement, upon at
least 30 days' prior notice to the Owners and the Company, and the Depositary
shall not be subject to any liability hereunder on account of such termination
or such determination. The effect of any such termination of the Deposit
Agreement shall be as provided in Section 6.2 of the Deposit Agreement.
The Company or the Depositary may from time to time request Owners to
provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts and the nature and extent of such interest. Each
Owner agrees to provide any information requested by the Company or the
Depositary pursuant to Section 3.4 of the Deposit Agreement. The Depositary
agrees to use reasonable efforts to comply with reasonable written instructions
received from the Company requesting that the Depositary forward any such
requests to the Owners and to forward to the Company any such responses to such
requests received by the Depositary. If the Company requests information from
the Depositary in its capacity as the registered owner of the Shares, the
obligations of the Depositary shall be limited to disclosing to the Company the
information contained in the Register.
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