EXHIBIT 2.1
[Execution Copy]
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CONTAX PARTICIPACOES S.A.
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of __________, 2005
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TABLE OF CONTENTS
ARTICLE 1............................................................................................... 1
Section 1.01 American Depositary Shares...................................................... 1
Section 1.02 Beneficial Owner................................................................ 2
Section 1.03 Business Day.................................................................... 2
Section 1.04 Commission...................................................................... 2
Section 1.05 Company......................................................................... 2
Section 1.06 Custodian....................................................................... 2
Section 1.07 Deliver; Surrender.............................................................. 2
Section 1.08 Deposit Agreement............................................................... 3
Section 1.09 Depositary; Corporate Trust Office.............................................. 3
Section 1.10 Deposited Securities............................................................ 3
Section 1.11 Dollars; Reais.................................................................. 3
Section 1.12 Foreign Currency................................................................ 3
Section 1.13 Foreign Registrar............................................................... 3
Section 1.14 Owner........................................................................... 3
Section 1.15 Pre-Release..................................................................... 3
Section 1.16 Receipts........................................................................ 4
Section 1.17 Registrar....................................................................... 4
Section 1.18 Securities Act of 1933.......................................................... 4
Section 1.19 Shares.......................................................................... 4
ARTICLE 2............................................................................................... 4
Section 2.01 Form and Transferability of Receipts............................................ 4
Section 2.02 Deposit of Shares............................................................... 5
Section 2.03 Execution and Delivery of Receipts.............................................. 6
Section 2.04 Transfer of Receipts; Combination and Split-up of Receipts...................... 7
Section 2.05 Surrender of Receipts and Withdrawal of Shares.................................. 7
Section 2.06 Limitations on Execution and Delivery, Transfer and Surrender of Receipts....... 8
Section 2.07 Lost Receipts, etc.............................................................. 9
Section 2.08 Cancellation and Destruction of Surrendered Receipts............................ 10
Section 2.09 Pre-Release of Receipts......................................................... 10
Section 2.10 Maintenance of Records.......................................................... 10
ARTICLE 3............................................................................................... 11
Section 3.01 Filing Proofs, Certificates and Other Information............................... 11
Section 3.02 Liability of Owner or Beneficial Owner for Taxes................................ 11
Section 3.03 Warranties on Deposit of Shares................................................. 12
Section 3.04 Disclosure to Brazilian Regulatory Authorities.................................. 12
Section 3.05 Disclosure of Interests......................................................... 12
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ARTICLE 4............................................................................................... 13
Section 4.01 Cash Distributions.............................................................. 13
Section 4.02 Distributions Other Than Cash, Shares or Rights................................. 13
Section 4.03 Distributions in Shares......................................................... 14
Section 4.04 Rights.......................................................................... 14
Section 4.05 Conversion of Foreign Currency.................................................. 16
Section 4.06 Fixing of Record Date........................................................... 17
Section 4.07 Voting of Deposited Securities.................................................. 18
Section 4.08 Changes Affecting Deposited Securities.......................................... 19
Section 4.09 Reports......................................................................... 19
Section 4.10 Lists of Owners................................................................. 20
Section 4.11 Withholding..................................................................... 20
ARTICLE 5............................................................................................... 21
Section 5.01 Maintenance of Office and Transfer Books by the Depositary...................... 21
Section 5.02 Prevention or Delay in Performance by the Depositary or the Company............. 21
Section 5.03 Obligations of the Depositary, the Custodian and the Company.................... 22
Section 5.04 Resignation and Removal of the Depositary....................................... 23
Section 5.05 The Custodian................................................................... 24
Section 5.06 Notices and Reports............................................................. 24
Section 5.07 Distribution of Additional Shares, Rights, etc.................................. 25
Section 5.08 Indemnification................................................................. 25
Section 5.09 Charges of Depositary........................................................... 26
Section 5.10 Exclusivity..................................................................... 28
ARTICLE 6............................................................................................... 28
Section 6.01 Amendment....................................................................... 28
Section 6.02 Termination..................................................................... 28
ARTICLE 7............................................................................................... 29
Section 7.01 Counterparts.................................................................... 29
Section 7.02 No Third Party Beneficiaries.................................................... 29
Section 7.03 Severability.................................................................... 30
Section 7.04 Binding Effect on Owners and Beneficial Owners.................................. 30
Section 7.05 Notices......................................................................... 30
Section 7.06 Governing Law................................................................... 31
Section 7.07 Headings........................................................................ 31
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________, 2005, among CONTAX
PARTICIPACOES S.A., a sociedade anonima (a corporation) organized under the laws
of the Federative Republic of Brazil (herein called the Company), THE BANK OF
NEW YORK, a New York banking corporation (herein called the Depositary), and all
Owners and Beneficial Owners from time to time of American Depositary Receipts
issued hereunder.
WITNESSETH
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:
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 1.01 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, until there shall occur a distribution
upon Deposited Securities covered by Section 4.03 or a change in Deposited
Securities covered by Section 4.08 or otherwise with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or other Deposited Securities
specified in such Sections.
SECTION 1.02 BENEFICIAL OWNER.
The term "Beneficial Owner" shall be any person who has a beneficial
interest in any American Depositary Share.
SECTION 1.03 BUSINESS DAY.
The term "Business Day" shall mean any day on which both banks in
Brazil and banks in New York, New York are not required or authorized by law to
close.
SECTION 1.04 COMMISSION.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.05 COMPANY.
The term "Company" shall mean Contax Participacoes S.A.,
incorporated under the laws of Brazil, and its successors.
SECTION 1.06 CUSTODIAN.
The term "Custodian" shall mean the principal 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 5.05, as substitute
or additional custodian or custodians hereunder, as the context shall require
and shall also mean all of them collectively.
SECTION 1.07 DELIVER; SURRENDER.
The term "deliver", or its noun form, when used with respect to
Shares shall mean (i) one or more book-entry transfers to an account or accounts
maintained with a depository institution authorized under applicable law to
effect book-entry transfers of such securities or (ii) the physical transfer of
certificates representing Shares.
The term "deliver", or its noun form, when used with respect to
Receipts, shall mean (i) one or more book-entry transfers of American Depositary
Shares to an account or accounts at The Depository Trust Company ("DTC")
designated by the person entitled to such delivery or (ii) if requested by the
person entitled to such delivery, to delivery at the Corporate Trust Office of
the Depositary of one or more Receipts.
The term "surrender", when used with respect to Receipts, shall mean
(i) one or more book-entry transfers of American Depositary Shares to the DTC
account of the Depositary or (ii) surrender to the Depositary at its Corporate
Trust Office of one or more Receipts.
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SECTION 1.08 DEPOSIT AGREEMENT.
The term "Deposit Agreement" shall mean this Deposit Agreement,
including the Exhibits hereto, as the same may be amended from time to time in
accordance with the provisions hereof.
SECTION 1.09 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 Deposit Agreement is 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.10 DEPOSITED SECURITIES.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited (including as contemplated under
Section 2.09) under this Deposit Agreement and any and all other securities,
property and cash received or deemed to be received by the Depositary or the
Custodian in respect or in lieu of such deposited Shares and at such time held
hereunder, subject as to cash to the provisions of Section 4.05.
SECTION 1.11 DOLLARS; REAIS.
The term "Dollars" shall mean United States dollars. The term
"Reais" shall mean the lawful currency of Brazil.
SECTION 1.12 FOREIGN CURRENCY.
The term "Foreign Currency" shall mean currency other than Dollars.
SECTION 1.13 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 1.14 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 1.15 PRE-RELEASE.
The term "Pre-Release" shall have the meaning set forth in Section
2.09.
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SECTION 1.16 RECEIPTS.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.17 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 1.18 SECURITIES ACT OF 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.19 SHARES.
The term "Shares" shall mean shares of the Company's non-voting
preferred stock in registered form, 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, subscribed 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 2.01 FORM AND TRANSFERABILITY OF RECEIPTS.
Definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders or such other form as may be agreed between the Company
and the Depositary and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. 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
signature of a duly authorized signatory of the Depositary; provided, however,
that such signature may be a facsimile if a Registrar for the Receipts shall
have been appointed and such Receipts are countersigned by the manual signature
of a duly authorized officer of the Registrar. Receipts may be issued in
denominations of any whole number of American Depositary Shares. The Depositary
shall maintain books on which each Receipt so executed and delivered as
hereinafter
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provided and the transfer of each such Receipt shall be registered. Receipts
bearing the 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 or with any provisions of the Company's
charter or Brazilian law as may be reasonably required by the Depositary in
order 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 Depositary and the
Company, 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.
SECTION 2.02 DEPOSIT OF SHARES.
Subject to the terms and conditions of this Deposit Agreement,
Shares, or evidence of rights to receive Shares to the extent permitted by
Section 2.09, may be deposited by book-entry delivery thereof to any 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, the Custodian or the
Company in accordance with the provision 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 by evidence satisfactory to the Depositary that any
necessary approval has been granted by the governmental body or bodies in Brazil
which is or are then regulating 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 (i) 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
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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 and (ii) if the Shares are registered in
the name of the person on whose behalf they are presented for deposit, a proxy
or proxies entitling the Custodian to vote such deposited Shares for any and all
purposes until the Shares are registered in the name of the Custodian or its
nominees.
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 a Custodian of 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 such
evidence of ownership 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 at the cost and
expense of the person making such deposit (or for whose benefit such deposit is
made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS.
Upon receipt by any Custodian of any deposit pursuant to Section
2.02 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 or
the Foreign Registrar, as the case may be, 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, as promptly as practicable,
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
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to the Depositary of the fees of the Depositary for the execution and delivery
of such Receipt or Receipts as provided in Section 5.09, and of all taxes and
governmental charges and fees, if any, payable in connection with such deposit
and the transfer of the Deposited Securities. The Depositary shall not issue
Receipts except in accordance with this Section 2.03 and Sections 2.04, 2.07,
2.09, 4.03, 4.04 and 4.08.
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register 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, upon at least 20 days' written notice to the
Company, appoint one or more co-transfer agents, reasonably acceptable to the
Company, for the purpose of effecting transfers, combinations and split-ups of
Receipts at designated transfer offices on behalf of the Depositary. 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 and will be entitled to protection and indemnity to the
same extent as the Depositary.
SECTION 2.05 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
5.09 and payment of all taxes and governmental charges, if any, payable in
connection with such surrender and withdrawal of the Deposited Securities, and
subject to the terms and conditions of this Deposit Agreement and the Company's
Charter, 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 (a)(i) the delivery of certificates in the name of
such Owner or as ordered by him or certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him, or (ii)
book-entry transfer of the Shares represented by such Receipt to an account in
the
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name of such Owner or as ordered by him, and (b) delivery of 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 promptly as practicable, as hereinafter provided.
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, as promptly as practicable, direct the Custodian to deliver at
the Sao Paulo office of such Custodian, subject to Sections 2.06, 3.01 and 3.02
and to the other terms and conditions of this Deposit Agreement and the
Company's Charter, 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 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 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.
Neither the Depositary nor the Custodian shall deliver Shares, by
physical delivery, book entry or otherwise (other than to the Company or its
agent as contemplated by Section 4.08), or otherwise permit Shares to be
withdrawn from the facility created hereby, except upon the receipt and
cancellation of Receipts.
SECTION 2.06 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, the delivery of
any distribution thereon, or withdrawal of any Deposited Securities, the
Company, 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
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(including any such tax, charge or fee with respect to Shares being deposited or
withdrawn) and payment of any fees of the Depositary as provided in Section
5.09, may require the production of proof satisfactory to it as to the identity
and genuineness of any signature and may also require compliance with such
reasonable regulations the Depositary may establish consistent with the
provisions of this Deposit Agreement, including, without limitation, this
Section 2.06.
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 or the combination or split-up of 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 this Deposit Agreement, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding any other provision of
this Deposit Agreement or the Receipts, 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,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, or
(iv) any other reason that may at any time be specified in paragraph I(A)(1) of
the General Instructions to Form F-6, as from time to time in effect, or any
successor provision thereto. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares. The Depositary
will comply with written instructions of the Company that the Depositary shall
not accept for deposit hereunder any Shares identified in such instructions at
such times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with the securities
laws in the United States.
SECTION 2.07 LOST RECEIPTS, ETC.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, 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 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled,
subject to Section 2.10.
SECTION 2.09 PRE-RELEASE OF RECEIPTS.
The Depositary may, notwithstanding Section 2.03 hereof, execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.05, 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 right,
title and interest in such Shares or Receipts, as the case may be, to the
Depositary for the benefit of the Owners, and (iii) agrees in effect to hold
such Shares or Receipts, as the case may be, for the account of the Depositary
until delivery of the same upon the Depositary's request, (b) at all times fully
collateralized with cash, U.S. government securities or other collateral that
the Depositary determines, in good faith, will provide substantially similar
security and liquidity, (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
represented by American Depositary Shares which are outstanding at any time as a
result of Pre-Releases will not normally exceed thirty percent (30%) of the
American Depositary Shares outstanding (without giving effect to American
Depositary Shares evidenced by Receipts outstanding as a result of Pre-Release);
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems appropriate and may, with the prior written
consent of the Company, change such limit for purposes of general application.
The Depositary will also set limits with respect to the number of Pre-Released
Receipts involved in transactions to be done hereunder with any one person on a
case by case basis as it deems appropriate. The collateral referred to in clause
(b) above shall be held by the Depositary for the benefit of the Owners as
security for the performance of the obligations to deliver Shares or Receipts
set forth in clause (a) above (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 2.05,
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substitute Receipts delivered under Section 2.07, and of cancelled or destroyed
Receipts under Section 2.08, 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.
ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner 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, legal or
beneficial ownership of Receipts, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of this Deposit
Agreement or the Receipts, 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. 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 from time to time advise the Company of the
availability of any such proofs, certificates or other information and shall
provide copies thereof to the Company as promptly as practicable upon request by
the Company, unless such disclosure is prohibited by law.
SECTION 3.02 LIABILITY OF OWNER OR BENEFICIAL 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 or Beneficial Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any combination or split-up thereof 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 or Beneficial 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 governmental charge
(and any taxes or expenses arising out of such sale), and the Owner or
Beneficial Owner of such Receipt shall remain liable for any deficiency.
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SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid, nonassessable and free of any
preemptive 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 (i) the Shares presented for deposit are not, and the
Receipts issuable upon such deposit will not be, restricted securities within
the meaning of Rule 144(a)(3) under the Securities Act of 1933, and (ii) the
deposit of such Shares and the sale of Receipts evidencing American Depositary
Shares representing such Shares by that person are not otherwise restricted
under the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts.
SECTION 3.04 DISCLOSURE TO BRAZILIAN REGULATORY AUTHORITIES.
Each of the Depositary and the Company hereby confirms to the other
that for so long as this Deposit Agreement is in effect it shall furnish to the
Brazilian National Securities Commission (Comissao de Valores Mobiliarios) and
the Brazilian Central Bank (Banco Central do Brazil), at any time and within the
period that may be determined, 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 15 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 6.02.
SECTION 3.05 DISCLOSURE OF INTERESTS.
To the extent that provisions of or governing any Deposited
Securities (including the Company's Charter or applicable law) may require the
disclosure of beneficial or other ownership of Deposited Securities, other
Shares and other securities to the Company and may provide for blocking transfer
and voting or other rights to enforce such disclosure or limit such ownership,
the Depositary shall use its best efforts that are reasonable under the
circumstances to comply with Company instructions as to Receipts in respect of
any such enforcement or limitation, and Owners and Beneficial Owners shall
comply with all such disclosure requirements and ownership limitations and shall
cooperate with the Depositary's compliance with such Company instructions.
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ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.01 CASH DISTRIBUTIONS.
Whenever the Depositary, or on its behalf, its agent, shall receive
any cash dividend or other cash distribution on any Deposited Securities, the
Depositary shall, or shall cause its agent, as promptly as practicable after its
receipt of such dividend or distribution (unless otherwise prohibited or
prevented by law), subject to the provisions of Section 4.05, to convert such
dividend or distribution into Dollars and shall, as promptly as practicable,
distribute the amount thus received (net of the expenses of the Depositary as
provided in Section 5.09) 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 amounts as can be distributed without
distributing to any Owner a fraction of one cent and any balance that is not so
distributed shall be held by the Depositary (without liability for the interest
thereon) and shall be added to and be part of the next sum received by the
Depositary for distribution to the Owners of Receipts then outstanding. The
Company or its agent will remit to the appropriate governmental agency in Brazil
all amounts withheld and owing to such agency. The Depositary will forward to
the Company or its agent in a timely manner 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.
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS.
Subject to the provisions of Section 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.01, 4.03 or 4.04, the Depositary shall, as promptly as practicable,
cause the securities or property received by it to be distributed to the Owners
entitled thereto, 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 of 1933 in order to be distributed to Owners) the Depositary
deems such
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distribution not to be feasible, the Depositary may, after consultation with the
Company, 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 5.09 and any expenses in connection with such
sale) shall be distributed by the Depositary to the Owners entitled thereto as
in the case of a distribution received in cash pursuant to Section 4.01;
provided, however, no distribution to Owners pursuant to this Section 4.02 shall
be unreasonably delayed by any action of the Depositary or any of its agents.
SECTION 4.03 DISTRIBUTIONS IN SHARES.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may or shall, if
the Company shall so request, distribute, as promptly as practicable, 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 the fees of
the Depositary as provided in Section 5.09. 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 4.01; provided, however, no distribution to Owners pursuant
to this Section 4.03 shall be unreasonably delayed by any action of the
Depositary or any of its agents. 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
addition, the Depositary may withhold any distribution of Receipts under this
Section 4.03 if it has not received satisfactory assurances from the Company
that such distribution does not require registration under the Securities Act or
is exempt from registration under the provisions of such Act; provided that, in
any such event, the Depositary may sell the Shares distributed upon the
Deposited Securities and distribute the net proceeds, all in the manner and
subject to the conditions described in Section 4.01.
SECTION 4.04 RIGHTS.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net
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proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason it would be unlawful for the Depositary either to 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 in
its discretion that it is lawful and feasible to make such rights available to
all or certain Owners but not to other Owners, the Depositary may, and at the
written request of the Company shall, 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, but only pursuant to
a rights agency agreement to be entered into between the Company and the
Depositary, as rights agent, setting forth the procedures to be used for the
particular offering.
In circumstances in which rights would otherwise not be distributed,
if an Owner 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 promptly 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 to
be received upon the exercise of the rights, and upon payment of the fees of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to this paragraph, 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 that it is not lawful or feasible to
make such rights available to all or certain Owners, it may, and at the request
of the Company will use its best efforts that are reasonable under the
circumstances 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 of the Depositary as
provided in Section 5.09, any expenses in connection with such sale and all
taxes and
-15-
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. Such proceeds shall be distributed as promptly as practicable in
accordance with Section 4.01 hereof.
If a registration statement under the Securities Act of 1933 is
required with respect to the securities to which any rights relate in order for
the Company to offer such rights to Owners and sell the securities represented
by such rights, the Depositary will not offer such rights to Owners having an
address in the United States (as defined in Regulation S) unless and until such
a registration statement is in effect, or unless the offering and sale of such
securities and such rights to such Owners are exempt from registration under the
provisions of such Act.
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 4.05 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, pursuant to applicable law, be
converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary or the Custodian shall convert
or cause to be converted as promptly as practicable, by sale or in any other
manner that it may determine in accordance with applicable law, such Foreign
Currency into Dollars. If, at the time of conversion of such Foreign Currency
into Dollars, such Dollars can, pursuant to applicable law, be transferred
outside of Brazil for distribution to Owners entitled thereto, such Dollars
shall be distributed as promptly as practicable to the Owners entitled thereto
or, if the Depositary shall have distributed any rights, warrants or other
instruments which entitle the holders thereof to such Dollars, then to the
holders of such rights, warrants and/or instruments upon surrender thereof for
cancellation. Such distribution or conversion 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 5.09.
If such conversion, transfer or distribution can be effected only
with the approval or license of any government or agency thereof, the Depositary
shall file as promptly as practicable such application for approval or license
as it considers 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
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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, 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 4.06 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, or whenever the Depositary shall find it necessary or convenient,
the Depositary shall fix a record date, which date shall, to the extent
practicable, be either (x) the same date as the record date fixed by the
Company, or (y) if different from the record date fixed by the Company, be fixed
after consultation with the Company (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 4.01 through 4.05 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 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. The Company agrees to provide the
Depositary with 10 days' prior notice of any meeting of shareholders or of the
Board of Directors of the Company, the agenda for which includes authorization
for the declaration of a dividend; provided, however, that if the date for any
such meeting is fixed less than 10 days prior to such meeting or the Company
does not know, 10 days prior to such meeting, that a dividend may be declared at
any such meeting, then the Company shall give such notice to the Depositary as
promptly as practicable after such date is fixed or the Company learns that a
dividend may be declared.
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SECTION 4.07 VOTING OF DEPOSITED SECURITIES.
At any time that the Depositary has the right to vote the Shares
represented by the American Depositary Shares, the Depositary will comply with
the following provisions.
As soon as practicable after receipt of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, 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 in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting (or if requested
by the Company a summary of such information provided by the Company), (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 Charter 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 instructions 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 by 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 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 itself exercise any voting discretion
over any Deposited Securities. 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 date established by the Depositary for such purpose, 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 deemed given and no such discretionary proxy 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.
Subject to the rules of any securities exchange on which American
Depositary Shares or the Deposited Securities represented thereby are listed,
the Depositary shall if requested by the Company deliver, at least two Business
Days prior to the date of such meeting, to the Company, to the attention of its
Secretary, copies of all instructions received from Owners in accordance with
which the Depositary will vote, or cause to be voted, the Deposited Securities
represented by the American Depositary
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Shares evidenced by such Receipts at such meeting. Delivery of instructions
will be made at the expense of the Company (unless otherwise agreed in writing
by the Company and the Depositary) provided that payment of such expense shall
not be a condition precedent to the obligations of the Depositary under this
Section.
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 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 a Custodian in exchange for or in conversion of or
in respect of Deposited Securities shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, 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.
SECTION 4.09 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 send to the Owners copies of such reports when furnished
by the Company pursuant to Section 5.06. Any such reports and communications,
including any such proxy soliciting material, furnished to the Depositary by the
Company shall be furnished in English, to the extent such materials are required
to be translated into English pursuant to any regulations of the Commission. The
Company agrees to provide to the Depositary, at the Company's expense (unless
otherwise agreed in writing by the Company and the Depositary), all documents
that it provides to the Custodian.
In the event the Receipts are listed or quoted on a national
securities exchange in the United States, the Company will promptly transmit to
the Custodian English language versions of any reports and other communications
that are made generally available by the Company to holders of its Shares or
other Deposited Securities and the Depositary will, at the Company's expense
(unless otherwise agreed in writing by the Company and the Depositary), arrange
for the prompt transmittal by the Custodian to the Depositary of such notices,
reports and other communications and arrange for the mailing, at the Company's
expense (unless otherwise agreed in writing by the Company and the Depositary),
of copies thereof (or if requested by the Company, a summary
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of any such notice provided by the Company) to all Owners or, at the request of
the Company, make such notices, reports and other communications available to
all Owners on a basis similar to that for holders of Shares or other Deposited
Securities, or on such other basis as the Company may advise the Depositary may
be required by any applicable law, regulation or stock exchange requirement. The
Company has delivered to the Depositary and the Custodian a copy of the
provisions of or governing the Shares and any other Deposited Securities issued
by the Company or any affiliate of the Company, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such provisions as so amended or changed. The Depositary may
rely upon such copy for all purposes of this Deposit Agreement. The Depositary
will, at the expense of the Company (unless otherwise agreed in writing by the
Company and the Depositary), make such copy and such notices, reports and other
communications available for inspection by Owners at the Depositary's office, at
the office of the Custodian and at any other designated transfer offices.
SECTION 4.10 LISTS OF OWNERS.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company (unless otherwise agreed in writing by the Company and
the Depositary), 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 connection with any distribution to Owners, the Company will
remit to the appropriate governmental authority or agency all amounts (if any)
required to be withheld by the Company and owing to such authority or agency by
the Company; and the Depositary and the Custodian will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Depositary or the Custodian. In the
event that the Depositary determines that any distribution in property other
than cash (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, all in accordance with applicable provisions of this Deposit
Agreement.
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ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers, combinations and split-ups and surrender of Receipts in accordance
with the provisions of this Deposit Agreement.
The Depositary shall keep books 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 for an object other than the business of the Company,
including without limitation a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer books after consultation with
the Company to the extent practicable, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder or at the request of the Company, provided that any such closing of
the transfer books shall be subject to the provisions of Section 2.06 which
limit 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
reasonably acceptable to the Company for registry of such Receipts in accordance
with any requirements of such exchange or exchanges.
The Company shall have the right, upon reasonable written request,
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
co-registrars to supply copies of such portions of such records as the Company
may request.
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE
COMPANY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner, 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 Charter of the Company, or by reason of any
act of God or war or terrorism or other circumstance beyond its control, the
Depositary or the Company shall be prevented or forbidden from,
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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 it is
provided shall be done or performed; nor shall the Depositary or the Company nor
any of their respective directors, employees, agents or affiliates incur any
liability to any Owner or Beneficial Owner by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.01, 4.02, or 4.03 of the Deposit Agreement,
or an offering or distribution pursuant to Section 4.04 of the Deposit
Agreement, or for any other reason, the Depositary is prevented or prohibited
from making such distribution or offering available to Owners, and the
Depositary is prevented or prohibited from disposing of such distribution or
offering on behalf of such Owners and making the net proceeds available to such
Owners, then the Depositary, after consultation with the Company, shall not make
such distribution or offering, and shall allow any rights, if applicable, to
lapse.
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability 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.
Neither the Depositary nor the Company 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.
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
-22-
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.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
The Depositary, subject to Sections 2.05 and 2.09 hereof, may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
SECTION 5.04 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 written
notice of such removal, to become effective upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts that are reasonable under the
circumstances 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.
-23-
SECTION 5.05 THE CUSTODIAN.
The Custodian shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it and the
Depositary shall be responsible for the compliance by the Custodian with the
applicable provisions of this Deposit Agreement. Any Custodian may resign from
its duties hereunder by notice of such resignation delivered to the Depositary
at least 30 days prior to the date on which such resignation is to become
effective. If upon such resignation there shall be no Custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint a
substitute custodian or custodians approved by the Company (such approval not to
be unreasonably withheld), each of which shall thereafter be a Custodian
hereunder. The Depositary may discharge any Custodian at any time upon notice to
the Custodian being discharged with the approval of the Company (such approval
not to be unreasonably withheld). Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint substitute or additional custodian or custodians, which shall thereafter
be one of the Custodians hereunder. The Depositary shall notify the Company of
the appointment of a substitute or additional Custodian at least 30 days prior
to the date on which such appointment is to become effective. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
Promptly after any such change, the Depositary shall give notice thereof in
writing to all Owners.
Upon the appointment of any successor depositary hereunder, each
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 each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06 NOTICES AND REPORTS.
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, if not
already in English, to the extent required pursuant to any regulations of the
Commission, and the
-24-
prompt transmittal 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
the Company, the Depositary will arrange for the mailing, as promptly as
practicable and at the Company's expense (unless otherwise agreed in writing by
the Company and the Depositary), 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 5.07 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 or exchangeable for Shares, or (4) rights to subscribe for such
securities, the Company will take all steps reasonably necessary to ensure that
no violation by the Company or the Depositary of the Securities Act of 1933 will
result from such issuance or distribution.
The Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any Shares,
either 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 Company furnishes to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be reasonably satisfactory to the Depositary, stating that the offer and
sale of the Receipts evidencing the American Depositary Shares representing such
Shares are exempt from registration under that Act. The Company will advise each
person who, to the best knowledge of the Company, controls, or is under common
control with, the Company that such person is subject to the same restrictions
on the deposit of Shares as the Company and persons controlled by the Company.
SECTION 5.08 INDEMNIFICATION.
The Company agrees to indemnify the Depositary, its directors,
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 or in connection
with (a) any registration of Shares or American Depositary Shares under the
Securities Act of 1933 or the offer or sale of those securities in the United
States or (b) acts performed or omitted pursuant to the provisions of this
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, 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
-25-
Company by the Depositary or the Custodian, as applicable, 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 omissions from such information; or (ii) by the
Company or any of its directors, 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 2.09) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.09;
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 be 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 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,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
Any person seeking indemnification hereunder (an "Indemnified
Person") shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement and
shall consult in good faith with the Indemnifying Person as to the conduct of
the defense of such action or claim, which defense shall be reasonable under the
circumstances. No Indemnified Person shall compromise or settle any such action
or claim without the consent in writing of the Indemnifying Person, which
consent shall not be unreasonably withheld.
SECTION 5.09 CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable out-of-pocket
expenses 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
-26-
shall present detailed statements 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 (to the extent permitted by applicable
law or the rules of any securities exchange on which the American Depositary
Shares are admitted for trading) 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 4.03) 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 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 4.05, (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 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
this Deposit Agreement, including, but not limited to Sections 4.01 through
4.04, (7) a fee for the distribution of securities pursuant to Section 4.02,
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 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 charges 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 4.06 and shall be collected at the sole discretion of
the Depositary by billing such Owners for such charge or by deducing such charge
from one or more cash dividends or other cash distributions).
The Depositary, subject to Section 2.09, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
-27-
SECTION 5.10 EXCLUSIVITY.
The Company agrees not to appoint any other depositary for issuance
of American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder, subject, however, to the rights of the Company under
Section 5.04.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.01 AMENDMENT.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any 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 6.02 TERMINATION.
The Depositary shall at any time, at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
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 termination 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 5.04. 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 2.05, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to the Owner or upon the Owner's
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
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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 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 5.08. Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01 COUNTERPARTS.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any Owner during business hours.
SECTION 7.02 NO THIRD PARTY BENEFICIARIES.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
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SECTION 7.03 SEVERABILITY.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 BINDING EFFECT ON OWNERS AND BENEFICIAL OWNERS.
The Owners and Beneficial Owners shall be bound by all of the terms
and conditions of this Deposit Agreement and of the Receipts by acceptance
thereof.
SECTION 7.05 NOTICES.
Any and all notices to be given to the Company shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Contax Participacoes
S.A., ___________________________, Brazil, Attention: _______________,
Facsimile: _______________, or other place to which the Company may have
transferred its principal office with notice to the Depositary.
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 to which the
Depositary may have transferred its Corporate Trust Office with notice to the
Company.
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 effective 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; provided, however, that delivery of a notice to the Company or the
Depositary shall be deemed to be effective when actually received by the Company
or the Depositary, as the case may be. 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.
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SECTION 7.06 GOVERNING LAW.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the law of the State of New York.
SECTION 7.07 HEADINGS.
Headings contained herein are included for convenience only and are
not to be used in construing or interpreting any provision hereof.
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IN WITNESS WHEREOF, CONTAX PARTICIPACOES S.A. 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.
CONTAX PARTICIPACOES S.A.
By:________________________
By:________________________
THE BANK OF NEW YORK,
as Depositary
By:______________________
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EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents one deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR NON-VOTING PREFERRED STOCK
WITHOUT PAR VALUE OF
CONTAX PARTICIPACOES S.A.
(ORGANIZED 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 stock (herein called "Shares") of
Contax Participacoes S.A., a sociedade anonima (a corporation) organized under
the laws of The Federative Republic of Brazil (herein called the "Company"). At
the date hereof, each American Depositary Share represents one Share deposited
or subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) at the Sao Paulo 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 00 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
A-1
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 July 27, 1998 (herein called the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners 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 Beneficial Owners 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 defined in the Deposit Agreement and
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 for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced hereby, 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 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 (a) (i) the delivery of
certificates in the name of the Owner hereof or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him, or (ii) book-entry transfer of the Shares
represented by this Receipt to an account in the name of such Owner or as
ordered by him, and (b) delivery of 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, as provided in the Deposit Agreement; 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.
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
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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, the delivery of any
distribution thereon, or withdrawal of any Deposited Securities, the Company,
the Depositary, the Custodian, or Registrar may require payment from the
depositor of the Shares or the presentor 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 such reasonable regulations the Depositary may
establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Article 3.
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, or the combination or split-up of 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 the provisions of the following sentence. 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, or (iv) any other reason that may at any time be specified
in paragraph I(A)(1) of the General Instructions to Form F-6, as from time to
time in effect, or any successor provision thereto. 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 of 1933, unless a registration statement is in effect as to
such Shares.
4. LIABILITY OF OWNER OR BENEFICIAL 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
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represented hereby, such tax or other governmental charge shall be payable by
the Owner or Beneficial Owner hereof to the Depositary. The Depositary may
refuse to effect any transfer of this Receipt or any combination or split-up
hereof 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 or Beneficial Owner hereof any part or all of the Deposited Securities
represented by 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 any taxes or expenses
arising out of such sale), and the Owner or Beneficial Owner hereof shall remain
liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit
Agreement shall be deemed thereby to represent and warrant that such Shares and
each certificate therefor are validly issued, fully paid, non-assessable, and
free of any preemptive 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 (i) the Shares presented for deposit are not,
and the Receipts issuable upon such deposit will not be, restricted securities
within the meaning of Rule 144(a)(3) under the Securities Act of 1933, and (ii)
the deposit of such Shares and the sale of Receipts evidencing American
Depositary Shares representing such Shares by that person are not otherwise
restricted under the Securities Act of 1933. 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 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, legal or
beneficial ownership of Receipts, Deposited Securities or other securities,
compliance with all applicable laws or regulations or terms of the Deposit
Agreement or such Receipt, 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. 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 from time to time advise the Company of the
availability of any such proofs, certificates or other information and shall
provide copies thereof to the Company as promptly as practicable upon request by
the Company, unless such disclosure is prohibited by law.
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7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees and reasonable out-of-pocket
expenses 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 detailed statement for such expenses
to the Company at least once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall (to the extent permitted by applicable
law or the rules of any securities exchange on which the American Depositary
Shares are admitted for trading) 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 4.03) 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 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 4.05, (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 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
this Deposit Agreement, including, but not limited to Sections 4.01 through
4.04, (7) a fee for the distribution of securities pursuant to Section 4.02,
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 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 charges 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 4.06 and shall be collected at the sole discretion of
the Depositary by billing such Owners for such charge or by deducing such charge
from one or more cash dividends or other cash distributions).
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The Depositary, subject to Section 2.09 of the Deposit Agreement,
may own and deal in any class of securities of the Company and its affiliates
and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may execute and deliver Receipts prior to the receipt
of Shares pursuant to Section 2.02 of the Deposit Agreement ("Pre-Release"). The
Depositary may, pursuant to Section 2.05 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 or Shares 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 right, title and interest in
such Shares or Receipts, as the case may be, to the Depositary for the benefit
of the Owners, and (iii) agrees in effect to hold such Shares or Receipts, as
the case may be, for the account of the Depositary until delivery of the same
upon the Depositary's request, (b) at all times fully collateralized with cash,
U.S. government securities or other collateral that the Depositary determines,
in good with, will provide substantially similar security and liquidity, (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 represented by American Depositary
Shares which are outstanding at any time as a result of Pre-Releases will not
normally exceed thirty percent (30%) of the American Depositary Shares
outstanding (without giving effect to American Depositary Shares evidenced by
Receipts outstanding as a result of Pre-Releases); provided, however, that the
Depositary reserves the right to disregard such limit from time to time as it
deems appropriate and may, with the prior written consent of the Company, change
such limit for purposes of general application. The Depositary will also set
limits with respect to the number of Pre-Released Receipts involved in
transactions to be done hereunder with any one person on a case by case basis as
it deems appropriate. The collateral referred to in clause (b) above shall be
held by the Depositary for the benefit of the Owners as security for the
performance of the obligations to deliver Shares or Receipts set forth in clause
(a) above (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
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transferable by delivery with the same effect as in the case of a negotiable
instrument, provided, however, that the Depositary and the Company,
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 or for all other purposes.
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 signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange
Commission (hereinafter called the "Commission") with certain public reports and
documents required by foreign law or otherwise under Rule 12g3-2(b) under the
Securities Exchange Act of 1934. Such reports and communications will be
available for inspection and copying by Beneficial Owners and Owners 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 will also send to Owners of Receipts copies of such
reports when 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 to the
extent such materials are required to be translated into English pursuant to any
regulations of the Commission. The Company agrees to provide to the Depositary,
at the Company's expense (unless otherwise agreed in writing by the Company and
the Depositary), all documents that it provides to the Custodian.
In the event the Receipts are listed or quoted on a national
securities exchange in the United States, the Company will promptly transmit to
the Custodian English language versions of any reports and other communications
that are made generally available by the Company to holders of its Shares or
other Deposited Securities and the Depositary will, at the Company's expense
(unless otherwise agreed in writing by the Company and the Depositary), arrange
for the prompt transmittal by the Custodian to
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the Depositary of such notices, reports and other communications and arrange for
the mailing, at the Company's expense (unless otherwise agreed in writing by the
Company and the Depositary), of copies thereof (or if requested by the Company,
a summary of any such notice provided by the Company) to all Owners or, at the
request of the Company, make such notices, reports and other communications
available to all Owners on a basis similar to that for holders of Shares or
other Deposited Securities, or on such other basis as the Company may advise the
Depositary may be required by any applicable law, regulation or stock exchange
requirement. The Company has delivered to the Depositary and the Custodian a
copy of the provisions of or governing the Shares and any other Deposited
Securities issued by the Company or any affiliate of the Company, and promptly
upon any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such provisions as so amended or changed.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement. The Depositary will, at the expense of the Company (unless otherwise
agreed in writing by the Company and the Depositary), make such copy and such
notices, reports and other communications available for inspection by Owners at
the Depositary's office, at the office of the Custodian and at any other
designated transfer offices.
The Depositary will keep books 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 for an object other than the
business of the Company, including, without limitation, a matter related to the
Deposit Agreement or the Receipts.
The Depositary may close the transfer books after consultation with
the Company to the extent practicable, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement or at the request of the Company, provided that any such
closing of the transfer books shall be subject to the provisions of Section 2.06
of the Deposit Agreement which limit the suspension of withdrawals of Shares.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or on its behalf, its agent, receives any
cash dividend or other cash distribution on any Deposited Securities, the
Depositary will, 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 or will cause its agent to
convert, as promptly as practicable after its receipt of such dividend or
distribution (unless otherwise prohibited or prevented by law), such dividend or
distribution into dollars and will, as promptly as practicable, distribute the
amount thus received (net of the expenses of the Depositary as provided in
Article 7 hereof and Section 5.09 of the Deposit Agreement) to the Owners of
Receipts entitled thereto, provided, however, that in the event that the Company
or the Depositary is required to
A-8
withhold and does withhold from such cash dividend or 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 Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will, as promptly as practicable, cause the securities or
property received by it to be distributed to the Owners of Receipts entitled
thereto, 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 may, after
consultation with the Company, 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 Article 7 hereof and Section 5.09 of the
Deposit Agreement and any expenses in connection with such sale) shall be
distributed by the Depositary to the Owners of Receipts entitled thereto as in
the case of a distribution received in cash, all in the manner and subject to
the conditions set forth in the Deposit Agreement.
If any distribution consists of a dividend in, or free distribution
of, Shares, the Depositary may or shall, if the Company shall so request,
distribute, as promptly as practicable, 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 Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary will 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. 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
addition, the Depositary may withhold any distribution of Receipts under this
paragraph and Section 4.03 of the Deposit Agreement if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act or is exempt from registration under the
provisions of such Act; provided that, in any such event, the Depositary may
sell the Shares distributed upon the Deposited Securities and distribute the net
proceeds, all in the
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manner and subject to the conditions described in this Article and Section 4.01
of the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property other than cash (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. RIGHTS.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to 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 for any other reason it would be
unlawful for the Depositary either to make such rights available to any Owners
or to 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 in its discretion that it is
lawful and feasible to make such rights available to all or certain Owners but
not to other Owners, the Depositary may, and at the written request of the
Company shall, 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, but only pursuant to a rights agency agreement to be
entered into between the Company and the Depositary, as rights agent, setting
forth the procedures to be used for the particular offering.
In circumstances in which rights would otherwise not be distributed,
if an Owner 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 promptly 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
Owners to exercise such rights, upon payment by such Owner to the Depositary for
the account of such Owner of an
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amount equal to the purchase price of the Shares to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary and any
other charges as set forth in such warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the rights and purchase the Shares, and
the Company shall cause the Shares so purchased to be delivered to the
Depositary on behalf of such Owner. As agent for such Owner, the Depositary will
cause the Shares so purchased to be deposited pursuant to Section 2.02 of the
Deposit Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement,
execute and deliver Receipts to such Owner. In the case of a distribution
pursuant to this paragraph, 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 that it is not lawful or feasible to
make such rights available to all or certain Owners, it may, and at the request
of the Company will use its best efforts that are reasonable under the
circumstances 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 of the Depositary as
provided in Section 5.09 of the Deposit Agreement, any expenses in connection
with such sale 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. Such proceeds shall be distributed as
promptly as practicable in accordance with Section 4.01 of the Deposit
Agreement.
If a registration statement under the Securities Act of 1933 is
required with respect to the securities to which any rights relate in order for
the Company to offer such rights to Owners and sell the securities represented
by such rights, the Depositary will not offer such rights to Owners having an
address in the United States (as defined in Regulation S) unless and until such
a registration statement is in effect, or unless the offering and sale of such
securities and such rights to such Owners are exempt from registration under the
provisions of such Act.
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.
14. 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, pursuant to applicable law, be
converted on a reasonable basis into Dollars
A-11
and the resulting Dollars transferred to the United States, the Depositary or
the Custodian shall convert or cause to be converted as promptly as practicable
(and in any event within one Business Day of its or its agent's receipt of such
Foreign Currency), by sale or in any other manner that it may determine in
accordance with applicable law, such Foreign Currency into Dollars. If, at the
time of conversion of such Foreign Currency into Dollars, such Dollars can,
pursuant to applicable law, be transferred outside of Brazil for distribution to
Owners entitled thereto, such Dollars shall be distributed as promptly as
practicable to the Owners entitled thereto or, if the Depositary shall have
distributed any rights, warrants or other instruments which entitle the holders
thereof to such Dollars, then to the holders of such rights, warrants and/or
instruments upon surrender thereof for cancellation. Such distribution or
conversion 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 5.09
of the Deposit Agreement.
If such conversion, transfer or distribution can be effected only
with the approval or license of any government or agency thereof, the Depositary
shall file as promptly as practicable such application for approval or license
as it considers 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, 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.
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
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American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient, the Depositary shall fix a
record date, which date shall, to the extent practicable, be either (x) the same
date as the record date fixed by the Company, or (y) if different from the
record date fixed by the Company, be fixed after consultation with the Company
(a) for the determination of the Owners of Receipts 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 the
Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
At any time that the Depositary has the right to vote the Shares
represented by the American Depositary Shares, the Depositary will comply with
the following provisions.
As soon as practicable after receipt of notice of any meeting or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners of Receipts a notice, the
form of which notice shall be in the sole discretion of the Depositary, which
shall contain (a) such information as is contained in such notice of meeting,
(or, if requested by the Company a summary of such information provided by the
Company), (b) a statement that the Owners of Receipts 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 Charter 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 instructions 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 by the Company. Upon the written request of an Owner of a
Receipt on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Shares or other Deposited
Securities represented by such American Depositary Shares evidenced by such
Receipt in accordance with the instructions set forth in such request. The
Depositary shall not itself exercise any voting discretion over any Deposited
Securities. If no instructions are received by the Depositary from any 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 date
established by the Depositary for such purpose, 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 deemed given and no such discretionary proxy shall be given
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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.
Subject to the rules of any securities exchange on which American
Depositary Shares or the Deposited Securities represented thereby are listed,
the Depositary shall if requested by the Company deliver, at least two Business
Days prior to the date of such meeting, to the Company, to the attention of its
Secretary, copies of all instructions received from Owners in accordance with
which the Depositary will vote, or cause to be voted, the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipts at such
meeting. Delivery of instructions will be made at the expense of the Company
(unless otherwise agreed in writing by the Company and the Depositary).
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 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 a 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 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, 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, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner, 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
other governmental or regulatory authority, or by reason of any provision,
present or future, of the Charter of the Company, 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 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 it is provided shall be done or performed; nor
shall the Depositary or the Company nor any of their respective directors,
employees, agents or affiliates incur any liability to any Owner or Beneficial
Owner of a Receipt by reason of any non-performance or delay, caused as
aforesaid, in the performance of any
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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 4.01, 4.02 or 4.03 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.04 of the
Deposit Agreement, 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. Neither the Company nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement to Owners or Beneficial Owners of Receipts, except that they
agree to perform their obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. The Depositary shall not be subject
to any liability with respect to the validity or worth of the Deposited
Securities. Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit, or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expenses 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. Neither the Depositary nor the Company 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 Beneficial Owner of a Receipt, or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary shall
not be responsible for any failure to carry out any instructions to vote any of
the Deposited Securities, or for the manner in which any such vote is cast or
the effect of any such vote, provided that any such action or nonaction is in
good faith. 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 a 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.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provisions of the Deposit Agreement.
The Depositary, subject to Sections 2.05 and 2.09 of the Deposit
Agreement, may own and deal in any class of securities of the Company and its
affiliates and in Receipts.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR CUSTODIAN.
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
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upon the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any time
be removed by the Company by written notice of such removal, to become effective
upon 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 appoint a
substitute or additional custodian or custodians.
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 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 and 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 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 at any time, at the direction of the Company, shall
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 termination 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 2.05 of the Deposit Agreement, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to the Owner or upon the Owner's order, of the amount of Deposited
Securities represented by the American Depositary
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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 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 accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges) and
except as provided in Section 5.08 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 with respect to indemnification, charges, and expenses.
22. DISCLOSURE TO BRAZILIAN REGULATORY AUTHORITIES.
Each of the Depositary and the Company hereby confirms to the other
that for so long as the Deposit Agreement is in effect it shall furnish to the
Brazilian National Securities Commission (Comissao de Valores Mobiliarios) and
the Brazilian Central Bank (Banco Central do Brazil), at any time and within the
period that may be determined, 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 15 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
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or such determination. The effect of any such termination of the Deposit
Agreement shall be as provided in Section 6.02 of the Deposit Agreement.
23. DISCLOSURE OF INTERESTS.
To the extent that provisions of or governing any Deposited
Securities (including the Company's Charter or applicable law) may require the
disclosure of beneficial or other ownership of Deposited Securities, other
Shares and other securities to the Company and may provide for blocking transfer
and voting or other rights to enforce such disclosure or limit such ownership,
the Depositary shall use its best efforts that are reasonable under the
circumstances to comply with Company instructions as to Receipts in respect of
any such enforcement or limitation, and Owners and Beneficial Owners shall
comply with all such disclosure requirements and ownership limitations and shall
cooperate with the Depositary's compliance with such Company instructions.
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