Exhibit 2.01
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DEPOSIT AGREEMENT
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by and among
COPENE - PETROQUIMICA DO NORDESTE S.A.
as Issuer
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of November 24, 1998
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS....................................................................1
SECTION 1.1 "Affiliate".................................................1
SECTION 1.2 "American Depositary Share(s)" and "ADS(s)".................1
SECTION 1.3 "ADS Record Date"...........................................2
SECTION 1.4 "Beneficial Owner"..........................................2
SECTION 1.5. "Brazil"....................................................2
SECTION 1.6 "Business Day"..............................................2
SECTION 1.7 "Commission"................................................2
SECTION 1.8 "Company"...................................................2
SECTION 1.9 "Custodian".................................................2
SECTION 1.10 "Deliver" and "Delivery"....................................2
SECTION 1.11 "Deposit Agreement".........................................2
SECTION 1.12 "Depositary"................................................2
SECTION 1.13 "Deposited Securities"......................................2
SECTION 1.14 "Dollars" and "$"...........................................2
SECTION 1.15 "DTC".......................................................2
SECTION 1.16 "DTC Participant"...........................................3
SECTION 1.17 "Exchange Act"..............................................3
SECTION 1.18 "Foreign Currency"..........................................3
SECTION 1.19 "Holder"....................................................3
SECTION 1.20 "Pre-Release"...............................................3
SECTION 1.21 "Principal Office"..........................................3
SECTION 1.22 "Real;" "Reais" and "R$"....................................3
SECTION 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s) "3
SECTION 1.24 "Registrar".................................................3
SECTION 1.25 "Restricted Securities".....................................3
SECTION 1.26 "Securities Act"............................................4
SECTION 1.27 "Share Registrar"...........................................4
SECTION 1.28 "Shares"....................................................4
SECTION 1.29 "United States" or "U.S."...................................4
(i)
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS......................4
SECTION 2.1 Appointment of Depositary...................................4
SECTION 2.2 Form and Transferability of Receipts........................4
SECTION 2.3 Deposit with Custodian......................................6
SECTION 2.4 Registration of Shares......................................6
SECTION 2.5 Execution and Delivery of Receipts..........................7
SECTION 2.6 Transfer of Receipts; Combination and Split-up of Receipts..7
SECTION 2.7 Surrender of Receipts and Withdrawal of Deposited
Securities..................................................8
SECTION 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.............9
SECTION 2.9 Lost Receipts, etc.........................................10
SECTION 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records.....................................10
SECTION 2.11 Partial Entitlement ADSs...................................10
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS....................................11
SECTION 3.1 Proofs, Certificates and Other Information.................11
SECTION 3.2 Liability for Taxes and Other Charges......................12
SECTION 3.3 Representations and Warranties on Deposit of Shares........12
SECTION 3.4 Compliance with Information Requests.......................12
SECTION 3.5 Ownership Restrictions.....................................13
ARTICLE IV
THE DEPOSITED SECURITIES......................................................13
SECTION 4.1 Cash Distributions.........................................13
SECTION 4.2 Distribution in Shares.....................................14
SECTION 4.3 Elective Distributions in Cash or Shares...................14
SECTION 4.4 Distribution of Rights to Purchase Shares..................15
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to
Purchase Shares............................................16
SECTION 4.6 Distributions with Respect to Deposited Securities in
Bearer Form................................................17
SECTION 4.7 Redemption.................................................17
SECTION 4.8 Conversion of Foreign Currency.............................18
SECTION 4.9 Fixing of Record Date......................................18
SECTION 4.10 Voting of Deposited Securities.............................19
SECTION 4.11 Changes Affecting Deposited Securities.....................19
SECTION 4.12 Available Information......................................20
(ii)
Page
SECTION 4.13 Reports....................................................20
SECTION 4.14 List of Holders............................................20
SECTION 4.15 Taxation...................................................20
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.................................22
SECTION 5.1 Maintenance of Office and Transfer Books by the
Registrar..................................................22
SECTION 5.2 Exoneration................................................22
SECTION 5.3 Standard of Care...........................................23
SECTION 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary....................................23
SECTION 5.5 The Custodian..............................................24
SECTION 5.6 Notices and Reports........................................25
SECTION 5.7 Issuance of Additional Shares, ADSs etc....................25
SECTION 5.8 Indemnification............................................26
SECTION 5.9 Fees and Charges of Depositary.............................27
SECTION 5.10 Pre-Release................................................27
EXHIBIT A Form of Receipt..................................................A-1
EXHIBIT B Fees Schedule....................................................B-1
(iii)
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of November 24, 1998, by and among (i) COPENE -
PETROQUIMICA DO NORDESTE S.A., a company incorporated under the laws of the
Federative Republic of Brazil ("Brazil"), and its successors (the "Company"),
(ii) CITIBANK, N.A., a national banking association organized under the laws of
the United States of America acting in its capacity as depositary, and any
successor depositary hereunder (the "Depositary"), and (iii) all Holders and
Beneficial Owners of American Depositary Shares evidenced by American Depositary
Receipts issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding 1,134,260
thousand non-voting preferred class "A" shares, without par value (the "Shares")
which are listed for trading on Bolsa de Valores de Sao Paulo (the "Sao Paulo
Stock Exchange"); and
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing such American Depositary
Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement 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; and
WHEREAS, the American Depositary Shares to be issued pursuant to the terms
of this Deposit Agreement are to be listed on The New York Stock Exchange, Inc.;
and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "Affiliate" shall have the meaning assigned to such term by the
Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
SECTION 1.2 "American Depositary Share(s)" and "ADS(s)" American Depositary
Share(s) shall mean with respect to any American Depositary Receipt, the rights
and interests in the Deposited Securities granted to the Holders and Beneficial
Owners pursuant to the terms and conditions of this Deposit Agreement and the
American Depositary Receipts issued hereunder. Each American Depositary Share
shall represent 50 Shares, until there shall occur a distribution
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upon Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.11 with respect to which additional American
Depositary Receipts are not executed and delivered, and thereafter each American
Depositary Share shall represent the Shares or Deposited Securities specified in
such Sections.
SECTION 1.3 "ADS Record Date" shall have the meaning given to such term in
Section 4.9.
SECTION 1.4 "Beneficial Owner" shall mean as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner may or may not be the Holder of the ADR evidencing such ADSs. A
Beneficial Owner shall be able to exercise any right or receive any benefit
hereunder solely through the person who is the Holder of the ADR(s) evidencing
the ADSs owned by such Beneficial Owner.
SECTION 1.5. "Brazil" shall mean the Federal Republic of Brazil.
SECTION 1.6 "Business Day" shall mean any day on which both the banks in
both Rio de Janeiro, Brazil and New York are open for business.
SECTION 1.7 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency in the United States.
SECTION 1.8 "Company" shall mean Copene - Petroquimica do Nordeste S.A., a
company incorporated and existing under the laws of Brazil, and its successors.
SECTION 1.9 "Custodian" shall mean, as of the date hereof, Banco Itau S.A.,
having its principal office at Xxx Xxx Xxxxx, 000, Xxx Xxxxx, Xxxxxx, as the
custodian for the purposes of this Deposit Agreement, and any other firm or
corporation which may be appointed by the Depositary pursuant to the terms of
Section 5.5 as a successor or an additional custodian or custodians hereunder,
as the context shall require. The term "Custodians" shall mean all custodians,
collectively.
SECTION 1.10 "Deliver" and "Delivery" shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, as
appropriate.
SECTION 1.11 "Deposit Agreement" shall mean this Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
SECTION 1.12 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as depositary under the terms of this Deposit Agreement, and any
successor depositary hereunder.
SECTION 1.13 "Deposited Securities" shall mean Shares at any time deposited
under this Deposit Agreement and any and all other securities, property and cash
held by the Depositary or the Custodian in respect thereof, subject, in the case
of cash, to the provisions of Section 4.8. The collateral delivered in
connection with Pre-Release Transactions described in Section 5.10 hereof shall
not constitute Deposited Securities.
SECTION 1.14 "Dollars" and "$" shall refer to the lawful currency of the
United States.
SECTION 1.15 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
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SECTION 1.16 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
SECTION 1.17 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
SECTION 1.18 "Foreign Currency" shall mean any currency other than Dollars.
SECTION 1.19 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. If a Holder is
not the Beneficial Owner of the ADSs evidenced by the Receipt registered in its
name, such person shall be deemed to have all requisite authority to act on
behalf of the Beneficial Owners of such ADSs.
SECTION 1.20 "Pre-Release" shall have the meaning set forth in Section 5.10
hereof.
SECTION 1.21 "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
SECTION 1.22 "Real;" "Reais" and "R$" shall refer to the lawful currency of
Brazil.
SECTION 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"
shall mean the certificate(s) issued by the Depositary evidencing the American
Depositary Shares issued under the terms of this Deposit Agreement, as such
Receipts may be amended from time to time in accordance with the provisions of
this Deposit Agreement. A Receipt may evidence any number of American Depositary
Shares and may, in the case of American Depositary Shares held through a central
depository such as DTC, be in the form of a "Balance Certificate."
SECTION 1.24 "Registrar" shall mean the Depositary or, with the approval of
the Company, any bank or trust company having an office in the Borough of
Manhattan, The City of New York, which shall be appointed by the Depositary to
register ownership of Receipts and transfers of Receipts as herein provided, and
shall include any co-registrar appointed by the Depositary, with the approval of
the Company, for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary with the approval of the
Company. Each Registrar (other than the Depositary) appointed pursuant to this
Deposit Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
SECTION 1.25 "Restricted Securities" shall mean Shares, or American
Depositary Shares representing such Shares, which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States,
Brazil, or under a shareholders' agreement or the Estatuto Social of the Company
or under the regulations of an applicable securities exchange unless, in each
case, such Shares are being sold to persons other than an Affiliate of the
Company in a transaction (i) covered by an effective resale registration
statement or (ii) exempt from the registration requirements of the Securities
Act (as hereinafter defined), and the Shares are not, when held by such person,
Restricted Securities.
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SECTION 1.26 "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.27 "Share Registrar" shall mean Banco Itau S.A. or a depository
institution organized under the laws of Brazil, which carries out the duties of
registrar for the Shares or any successor as Share Registrar for such Shares
appointed by the Company.
SECTION 1.28 "Shares" shall mean the Company's non-voting preferred
class "A" (acoes preferencias classe "A") shares, without par value, validly
issued and outstanding and fully paid and may, if the Depositary so agrees after
consultation with the Company, include evidence of the right to receive Shares;
provided that in no event shall Shares include evidence of the right to receive
Shares with respect to which the full purchase price has not been paid or Shares
as to which preemptive rights have theretofore not been validly waived or
exercised; provided further, however, that, if there shall occur any change in
par value, split-up, consolidation, reclassification, conversion or any other
event described in Section 4.8, in respect of the Shares of the Company, the
term "Shares" shall thereafter, to the extent permitted by law, represent the
successor securities resulting from such change in par value, split-up,
consolidation, exchange, conversion, reclassification or event.
SECTION 1.29 "United States" or "U.S." shall mean the United States of
America.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement, to adopt any and all
procedures necessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriate to carry
out the purposes of this Deposit Agreement (the taking of such actions to be the
conclusive determinant of the necessity and appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) Form. American Depositary Shares shall be evidenced by definitive
Receipts which shall be engraved, printed, lithographed or produced in such
other manner as may be agreed upon by the Company and the Depositary. The
Receipts shall be substantially in the form set forth in Exhibit A to this
Deposit Agreement, with any appropriate insertions, modifications and omissions.
Receipts shall be (i) dated, (ii) executed by the manual or facsimile signature
of a duly authorized signatory of the Depositary, (iii) countersigned by the
manual or facsimile signature of a duly authorized signatory of the Registrar
and (iv) registered in the books maintained by the Registrar for the issuance
and transfer of Receipts. No Receipt and no American Depositary Share evidenced
thereby shall be entitled to any benefits under this Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company,
4
unless such Receipt shall have been so dated, signed, countersigned and
registered. Receipts bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly-authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary. The Receipts shall bear a CUSIP number that is different from any
CUSIP number that was, is or may be assigned to any depositary receipts
previously or subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company which are not Receipts
issued hereunder.
(b) Legends. The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as (i) may be necessary to enable the
Depositary to perform its obligations hereunder, (ii) may be required to comply
with any applicable law or regulations, or with the rules and regulations of any
securities exchange or market upon which American Depositary Shares may be
traded, listed or quoted or to conform with any usage with respect thereto,
(iii) may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or American Depositary Shares are subject by
reason of the date of issuance of the Deposited Securities, or (iv) may be
required by any book-entry system in which the ADSs are held.
(c) Title. Subject to the limitations contained herein and in the form of
Receipt, title to a Receipt (and to each American Depositary Share evidenced
thereby), shall be transferable by delivery of the Receipt, provided that the
Receipt has been properly endorsed or accompanied by proper instruments of
transfer, such Receipt being a certificated security under the laws of the State
of New York. However, notwithstanding any notice to the contrary, the Depositary
may deem and treat the Holder of a Receipt (that is, the person in whose name a
Receipt is registered on the books of the Depositary) as the absolute owner
thereof for all purposes, and the Depositary shall have no obligation or be
subject to any liability under this Deposit Agreement to any holder of a Receipt
or any beneficial owner unless such holder is the registered Holder of such
Receipt on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the American Depositary Shares into DTC. A single ADR in the form
of a "Balance Certificate" will evidence all ADSs held through DTC and will be
registered in the name of the nominee for DTC (currently "Cede & Co."). As such,
the nominee for DTC will be the only "Holder" of the ADR evidencing all ADSs
held through DTC. Each Beneficial Owner of ADSs held through DTC must rely upon
the procedures of DTC and the DTC Participants to exercise or be entitled to any
rights attributable to such ADSs. The DTC Participants shall for all purposes be
deemed to have all requisite power and authority to act on behalf of the
Beneficial Owners of the ADSs held in the DTC Participants' respective accounts
in DTC, and the Depositary shall for all purposes be authorized to rely upon any
instructions and information given to it by DTC Participants on behalf of
Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADR
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC (or
its nominee), or (ii) DTC Participants (or their nominees).
5
SECTION 2.3 Deposit with Custodian. Subject to the terms and conditions of
this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7 hereof)
at any time, whether or not the transfer books of the Company or the Share
Registrar, if any, are closed, by Delivery of the Shares to the Custodian, and
(A) (in the case of Shares represented by certificates issued in registered
form) appropriate instruments of transfer or endorsement, in a form satisfactory
to the Custodian or, (in the case of Shares represented by certificates in
bearer form) of the requisite coupons pertaining thereto, (B) such
certifications and payments (including, without limitation, the Depositary's
fees and related charges) and evidence of such payments (including, without
limitation, stamping or otherwise marking such Shares by way of receipt) as may
be required by the Depositary or the Custodian in accordance with the provisions
of this Deposit Agreement, (C) if the Depositary so requires, 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 the Shares so deposited, (D)
evidence satisfactory to the Depositary (which may include an opinion of counsel
reasonably satisfactory to the Depositary) that all necessary approvals have
been granted by, and there has been compliance with the rules and regulations
of, the Banco Central do Brasil (the "Central Bank of Brazil"), the Comissao de
Valores Mobiliarios ("CVM") and any other applicable governmental agency in
Brazil, and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian 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 exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee. Without
limiting any other provision of this Deposit Agreement, the Depositary shall
instruct the Custodian not to, and the Depositary shall not knowingly, accept
for deposit (a) any Restricted Securities or (b) any fractional Shares or
fractional Deposited Securities or (c) a number of Shares or Deposited
Securities which upon application of the ADS to Shares ratio would give rise to
fractional ADSs. No Share shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
Brazil and any necessary approval has been granted by any governmental body in
Brazil, if any, which is then performing the function of the regulator of
currency exchange. The Depositary may issue Receipts against evidence of rights
to receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished on behalf of the holder thereof.
SECTION 2.4 Registration of Shares. The Depositary shall instruct the
Custodian upon each delivery of certificates representing registered Shares
being deposited hereunder with
6
the Custodian (or other Deposited Securities pursuant to Article IV hereof),
together with the other documents above specified, to present such certificate
or certificates, together with the appropriate instrument or instruments of
transfer or endorsement, duly stamped, to the Share Registrar for transfer and
registration of the Shares (as soon as transfer and registration can be
accomplished and at the expense of the person for whom the deposit is made) in
the name of the Depositary, the Custodian or a nominee of either. Deposited
Securities shall be held by the Depositary or by a Custodian for the account and
to the order of the Depositary or a nominee, in each case on behalf of the
Holders and Beneficial Owners, at such place or places as the Depositary or the
Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or Deposited Securities the deposit of which
would violate any provisions of the Estatuto Social (bylaws) of the Company.
SECTION 2.5 Execution and Delivery of Receipts. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that any such
Deposited Securities have been recorded in the name of the Depositary, the
Custodian or a nominee of either on the shareholders' register maintained by or
on behalf of the Company if registered Shares have been deposited or if deposit
is made by book-entry transfer, confirmation of such transfer in the books of
the Share Registrar, (iii) that all required documents have been received, and
(iv) the person or persons to whom or upon whose written order American
Depositary Shares are deliverable in respect thereof and the number of American
Depositary Shares to be evidenced thereby. Such notification may be made by
letter, cable, telex, swift message or, at the risk and expense of the person
making the deposit, by facsimile or other means of electronic transmission. Upon
receiving such notice from the Custodian, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall issue the American Depositary
Shares representing the Shares so deposited to or upon the order of the
person(s) named in the notice delivered to the Depositary and shall execute and
deliver a Receipt or Receipts, registered in the name or names requested by such
person(s) and evidencing the aggregate number of American Depositary Shares to
which such person(s) are entitled, but only upon payment to the Depositary of
the charges of the Depositary for accepting a deposit, issuing American
Depositary Shares and executing and delivering such Receipt or Receipts (as set
forth in Section 5.9 and Exhibit B hereto) and all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Shares and the issuance of the Receipt or Receipts. The Depositary shall only
issue American Depositary Shares in whole numbers and deliver American
Depositary Receipts evidencing whole numbers of American Depositary Shares.
Nothing herein shall prohibit any Pre-Release Transaction upon the terms set
forth in this Deposit Agreement.
SECTION 2.6 Transfer of Receipts; Combination and Split-up of Receipts.
(a) Transfer. The Registrar, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its books, upon
surrender at the Principal Office of the Depositary of a Receipt by the Holder
thereof in person or by duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard industry practice) and duly stamped as may be required
by the laws of the State of New York and of the United States. Subject to the
terms and
7
conditions of this Deposit Agreement, including payment of the applicable fees
and charges of the Depositary set forth in Section 5.9 and Exhibit B hereto, the
Depositary shall execute, and if the Depositary's signature is by facsimile, the
Registrar shall manually countersign, a new Receipt or Receipts and deliver the
same to or upon the order of the person entitled thereto evidencing the same
aggregate number of American Depositary Shares as those evidenced by the
Receipts surrendered.
(b) Combination & Split Up. 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 and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 and Exhibit B hereto, execute, and if the
Depositary's signature is by facsimile, the Registrar shall manually countersign
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.
(c) Co-Transfer Agents. The Depositary may, with the approval of the
Company, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary. Such
co-transfer agents may be removed and substitutes appointed by the Depositary
with the approval of the Company. Each co-transfer agent appointed under this
Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
SECTION 2.7 Surrender of Receipts and Withdrawal of Deposited Securities.
Upon surrender, at the Principal Office of the Depositary, of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (i) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 and Exhibit B hereof) and
(ii) all applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company's Estatuto Social, Section 7.8 hereof and any
other provisions of or governing the Deposited Securities and other applicable
laws, the Holder of such American Depositary Shares shall be entitled to
Delivery, to him or upon his order, of the Deposited Securities at the time
represented by the American Depositary Shares so surrendered. American
Depositary Shares may be surrendered for the purpose of withdrawing Deposited
Securities by delivery of a Receipt evidencing such American Depositary Shares
(if held in registered form) or by book-entry delivery of such American
Depositary Shares to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian (subject to
Sections 2.8, 3.1, 3.2, 5.9, and to the other terms and
8
conditions of this Deposit Agreement, to the Estatuto Social of the Company, to
the provisions of or governing the Deposited Securities and to applicable laws,
now or hereafter in effect) to or upon the written order of the person or
persons designated in the order delivered to the Depositary as provided above,
the Deposited Securities represented by such American Depositary Shares,
together with any certificate or other proper documents of or relating to title
of the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or for the account of such person. The
Depositary may make delivery to such person or persons at the Principal Office
of the Depositary of any dividends or cash distributions with respect to the
Deposited Securities represented by such American Depositary Shares, or of any
proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. The Depositary may, in its
discretion, refuse to accept for surrender a number of American Depositary
Shares representing a number other than a whole number of Shares. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward (to the extent permitted by law) any cash or other property (other than
securities) held in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
SECTION 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up, combination or
surrender of any Receipt, the delivery of any distribution thereon or withdrawal
of any Deposited Securities, the Depositary or the Custodian may require (i)
payment from the depositor of Shares or presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 and Exhibit B hereof, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or
American Depositary Shares or to the withdrawal of Deposited Securities and (B)
such reasonable regulations as the Depositary
9
and the Company may establish consistent with the provisions of this Deposit
Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of Shares
generally or against deposits of particular Shares may be suspended, or the
issuance of ADSs against the deposit of particular Shares may be withheld, or
the registration of transfer of Receipts in particular instances may be refused,
or the registration of transfers of Receipts generally may be suspended, during
any period when the transfer books of the Company, the Depositary, a Registrar
or the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange on which the Receipts or Shares
are listed, or under any provision of this Deposit Agreement or provisions of,
or governing, the Deposited Securities, or any meeting of shareholders of the
Company or for any other reason, subject, in all cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this Deposit
Agreement or any Receipt to the contrary, the Holders of Receipts are entitled
to surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
SECTION 2.9 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 at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) as may be required by the Depositary to save it and any of its agents
harmless, and (iii) has satisfied any other reasonable requirements imposed by
the Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, the authenticity
thereof and the Holder's ownership thereof.
SECTION 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
SECTION 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
10
from Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which are
separate and distinct from the ADSs and ADRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlement of Partial Entitlement Shares. Holders and Beneficial Owners of Full
Entitlement ADSs shall be entitled only to the entitlements of Full Entitlement
Shares. All provisions and conditions of this Agreement shall apply to Partial
Entitlement ADRs and ADSs to the same extent as Full Entitlement ADRs and ADSs,
except as contemplated by this Section 2.11. The Depositary is authorized to
take any and all other actions as may be necessary (including, without
limitation, making the necessary notations on Receipts) to give effect to the
terms of this Section 2.11. The Company agrees to give timely written notice to
the Depositary if any Shares issued or to be issued are Partial Entitlement
Shares and shall assist the Depositary with the establishment of procedures
enabling the identification of Partial Entitlement Shares upon Delivery to the
Custodian.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of this Deposit Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the appointed agent of the Company for the registration and
transfer of Shares) as the Depositary or the Custodian may deem necessary or
proper or as the Company may reasonably require by written request to the
Depositary consistent with its obligations hereunder. The Depositary and the
Registrar, as applicable, may withhold the execution or delivery or registration
of transfer of any Receipt or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof, or to the extent not limited
by the terms of Section 7.8 hereof, the delivery of any Deposited Securities,
until such proof or other information is filed or such certifications are
executed, or such representations are made, or such other documentation or
information provided, in each case to the Depositary's, the Registrar's and the
Company's satisfaction. The
11
Depositary shall provide the Company, in a timely manner, with copies or
originals if necessary and appropriate of (i) any such proofs of citizenship or
residence, taxpayer status, or exchange control approval which it receives from
Holders and Beneficial Owners, and (ii) any other information or documents which
the Company may reasonably request and which the Depositary shall request and
receive from any Holder or Beneficial Owner or any person presenting Shares for
deposit or ADSs for cancellation and withdrawal. Nothing herein shall obligate
the Depositary to (i) obtain any information for the Company if not provided by
the Holders or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary or the Custodian with
respect to any ADR or any Deposited Securities or American Depositary Shares,
such tax or other governmental charge shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, with the Holder and the Beneficial Owner remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares, and
the Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs and (subject to Section 7.8) the withdrawal of
Deposited Securities, until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and each of their respective agents,
officers, directors, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and are not, and the American Depositary Shares
issuable upon such deposit will not be, Restricted Securities and (v) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.4 Compliance with Information Requests. Notwithstanding any other
provision of this Deposit Agreement, each Holder and Beneficial Owner agrees to
comply with requests from the Company pursuant to Brazilian law, the rules and
requirements of the Sao Paulo Stock Exchange, and any other stock exchange on
which the Shares are, or will be, registered, traded or listed or the Estatuto
Social of the Company, which are made to provide information, inter alia, as to
the capacity in which such Holder or Beneficial Owner owns
12
American Depositary Shares (and Shares as the case may be) and regarding the
identity of any other person interested in such American Depositary Shares and
the nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use its reasonable efforts to forward upon the request of the Company,
at the Company's expense, any such request from the Company to the Holders and
to forward to the Company any such responses to such requests received by the
Depositary.
SECTION 3.5 Ownership Restrictions. Notwithstanding any other provision in
this Deposit Agreement the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Estatuto Social of the Company. The Company may also
restrict, in such manner as it deems appropriate, transfers of the American
Depositary Shares where such transfer may result in the total number of Shares
represented by the American Depositary Shares owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the transfer of American
Depositary Shares, the removal or limitation of voting rights or the mandatory
sale or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the American Depositary Shares held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such sale or
disposition is permitted by applicable law and the Estatuto Social of the
Company.
ARTICLE IV
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements under the terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
foreign currency can in the judgment of the Depositary (pursuant to Section 4.8
hereof) be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in Section 4.8)
and will distribute promptly the amount thus received (net of (a) the applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of American Depositary Shares held by such Holders respectively as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent,
and any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of Receipts
outstanding at the time of the next distribution. If the Company, the Custodian
or the Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of
13
payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request.
SECTION 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and shall, subject to Section 5.9 hereof, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), or (ii) if additional American Depositary Shares are not so distributed,
each American Depositary Share issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). In lieu of delivering fractional
American Depositary Shares, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms described in Section 4.1. In the event that the Depositary determines
that any distribution in property (including Shares) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, or, if
the Company, in the fulfillment of its obligation under Section 5.7 hereof, has
furnished an opinion of U.S. counsel (reasonably acceptable to the Depositary)
determining that Shares must be registered under the Securities Act or other
laws in order to be distributed to Holders (and no such registration statement
has been declared effective), the Depositary may dispose of all or a portion of
such property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of applicable (a) taxes and
(b) fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms described in Section 4.1. The Depositary shall
hold and/or distribute any unsold balance of such property in accordance with
the provisions of this Deposit Agreement.
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to distribute a dividend payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall give notice thereof to
the Depositary at least 30 days prior to the proposed distribution stating
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Depositary shall have determined that such distribution is reasonably
practicable and (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in the local
market in
14
respect of the Shares for which no election is made, either (X) cash upon the
terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9) and establish procedures to enable Holders
to elect the receipt of the proposed dividend in cash or in additional ADSs. The
Company shall assist the Depositary in establishing such procedures to the
extent necessary. If a Holder elects to receive the proposed dividend (X) in
cash, the dividend shall be distributed upon the terms described in Section 4.1,
or (Y) in ADSs, the dividend shall be distributed upon the terms described in
Section 4.2. Nothing herein shall obligate the Depositary to make available to
Holders a method to receive the elective dividend in Shares (rather than ADSs).
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to receive elective distributions on the same
terms and conditions as the holders of Shares.
SECTION 4.4 Distribution of Rights to Purchase Shares.
(a) Distribution to ADS Holders. Whenever the Company intends to distribute
to the holders of the Deposited Securities rights to subscribe for additional
Shares, the Company shall give notice thereof to the Depositary at least 60 days
prior to the proposed distribution stating whether or not it wishes such rights
to be made available to Holders of ADSs. Upon receipt of a notice indicating
that the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to Holders only if (i) the Company shall have
requested that such rights be made available to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7,
and (iii) the Depositary shall have determined that such distribution of rights
is reasonably practicable. In the event any of the conditions set forth above
are not satisfied, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date (upon the
terms described in Section 4.9) and establish procedures to distribute such
rights (by means of warrants or otherwise) and to enable the Holders to exercise
the rights (upon payment of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). The Company shall assist the
Depositary to the extent necessary in establishing such procedures. Nothing
herein shall obligate the Depositary to make available to the Holders a method
to exercise such rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not request the Depositary to
make the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 5.7 or determines it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine whether it is lawful and reasonably practicable to sell such
rights, in a riskless principal capacity or otherwise, at such place and upon
such terms (including public or private sale) as it may deem proper. The Company
shall assist the Depositary to the extent necessary to determine such legality
and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms set forth in Section
4.1.
15
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders unless and until a registration statement under the
Securities Act covering such offering is in effect. In the event that the
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein shall obligate the Company to file any registration statement in
respect of any rights or Shares or other securities to be acquired upon the
exercise of such rights.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give notice thereof to the Depositary at least 30 days
prior to the proposed distribution and shall indicate whether or not it wishes
such distribution to be made to Holders of ADSs. Upon receipt of a notice
indicating that the Company wishes such distribution be made to Holders of ADSs,
the Depositary shall consult with the Company, and the Company shall assist the
Depositary, to determine whether such distribution to Holders is lawful and
reasonably practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute ((i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld) the property so
received to the Holders of record as of the ADS Record Date, in proportion to
the number of ADSs held by such Holders respectively and in such manner as the
Depositary may
16
deem practicable for accomplishing such distribution. The Depositary may dispose
of all or a portion of the property so distributed and deposited, in such
amounts and in such manner (including public or private sale) as the Depositary
may deem practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the
distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the Depositary shall
sell or cause such property to be sold in a public or private sale, at such
place or places and upon such terms as it may deem proper and shall distribute
the net proceeds of such sale received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances.
SECTION 4.6 Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
SECTION 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary at least 30 days prior to the intended date of
redemption, which notice shall set forth the particulars of the proposed
redemption. Upon receipt of such (i) notice and (ii) satisfactory documentation
given by the Company to the Depositary within the terms of Section 5.7, the
Depositary shall mail to each Holder a notice setting forth the intended
exercise by the Company of such redemption rights and any other particulars set
forth in the Company's notice to the Depositary. The Depositary shall instruct
the Custodian to present to the Company the Deposited Securities in respect of
which redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall upon delivery of the ADSs to which such
redemption rights relate by Holder thereof, distribute the proceeds (net of
applicable (a) fees and charges of, and the expenses incurred by, the
Depositary, and (b) taxes) upon the terms of Section 4.1, retire such ADSs and
cancel the related ADRs upon the terms set forth in Sections 4.1 and 6.2 hereof.
If less than all outstanding Deposited Securities are redeemed, the ADSs to be
retired will be selected by lot or on a pro rata basis, as may be determined by
the Depositary. The redemption price per ADS shall be the per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (the applicable (a) fees and charges
of, and expenses incurred by, the Depositary, and (b) taxes) multiplied by the
number of Deposited Securities represented by each ADS redeemed.
17
SECTION 4.8 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 in the judgment of the Depositary such Foreign Currency can at such
time be converted on a practicable basis (by sale or in any other manner that it
may determine in accordance with applicable law) into Dollars transferable to
the United States and distributable to the Holders entitled thereto, the
Depositary shall convert or cause to be converted, by sale or in any other
manner that it may determine, such Foreign Currency into Dollars, and shall
distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on
behalf of the Holders in complying with currency exchange control or other
governmental requirements) in accordance with the terms of the applicable
sections of this Deposit Agreement. If the Depositary shall have distributed
warrants or other instruments that entitle the holders thereof to such Dollars,
the Depositary shall distribute such Dollars to the holders of such warrants
and/or instruments upon surrender thereof for cancellation, in either case
without liability for interest thereon. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of any application of exchange controls or otherwise.
If such conversion or distribution generally or with regard to a particular
Holder can be effected only with the approval or license of any government or
agency thereof, the Depositary shall have authority to file such application for
approval or license, if any, as it may deem desirable. The Depositary shall make
such a filing to the extent that the Depositary in its sole discretion shall
determine that such filing may be made at a reasonable cost and is otherwise
practicable.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary shall, in its sole discretion, take one or
more of the following actions: (i) make such conversion and distribution in
Dollars to the Holders for whom such conversion, transfer and distribution is
lawful and practicable; (ii) distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) to Holders for
whom such distribution is lawful and practicable; or (iii) hold (or cause the
Custodian to hold) such Foreign Currency (without liability for interest
thereon) for the respective accounts of the Holders entitled to receive the
same.
SECTION 4.9 Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights, or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of or solicitation of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall, after consultation with the Company, fix a
record date (the "ADS Record Date") for the determination of the Holders who
shall be entitled to receive such distribution, give instructions for the
exercise of
18
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each American Depositary Share. The Depositary shall make reasonable efforts
to establish the ADS Record Date as closely as possible to the record date
applicable to the Deposited Securities (if any). Subject to applicable law and
the provisions of Section 4.1 through 4.8 and to the other terms and conditions
of this Deposit Agreement, only the Holders of record at the close of business
on such ADS Record Date shall be entitled to receive such distribution, to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
SECTION 4.10 Voting of Deposited Securities. If, in the future, the terms
of the Shares should be revised or amended so as to provide for voting rights,
or should such Shares obtain voting rights through any change in the laws, rules
or regulations applicable to such Shares or through any change in interpretation
of such laws, then the following shall apply. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy. The Depositary shall, if
requested by the Company in writing in a timely manner and at the Company's
expense, mail to Holders: (a) such notice of meeting or solicitation of consent
or proxy; (b) a statement that the Holders at the close of business on the ADS
Record Date will be entitled, subject to any applicable law, the Estatuto Social
of the Company and the provisions of or governing the Deposited Securities
(which provisions, if any, shall be summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the Shares or other Deposited Securities represented by such
Holder's American Depositary Shares; and (c) a brief statement as to the manner
in which such instructions may be given. Voting instructions may be given only
in respect of a number of American Depositary Shares representing an integral
number of Shares or other Deposited Securities. Upon the timely receipt of
written instructions of a Holder of American Depositary Shares on the ADS Record
Date, the Depositary shall endeavor, insofar as practicable and permitted under
applicable law and the provisions of the Estatuto Social of the Company and the
provisions of or governing the Deposited Securities, to vote or cause the
Custodian to vote the Shares and/or other Deposited Securities (in person or by
proxy) represented by American Depositary Shares evidenced by such Receipt in
accordance with such instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders. Shares or
other Deposited Securities represented by American Depositary Shares for which
no specific voting instructions are received by the Depositary from the Holder
shall not be voted.
SECTION 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is otherwise a party, any securities which shall be received by
the Depositary or the Custodian in exchange for, or in conversion of or
replacement or
19
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional securities. Alternatively, the Depositary
may, with the Company's approval, and shall, if the Company shall so request,
subject to the terms of the Deposit Agreement and receipt of an opinion of
counsel to the Company satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities and/or corporate change. The Company
agrees to, jointly with the Depositary, amend the Registration Statement on Form
F-6 as filed with the Commission to permit the issuance of such new form of
Receipts. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's approval, and shall, if the Company requests, subject to
receipt of an opinion of Company's counsel satisfactory to the Depositary that
such action is not in violation of any applicable laws or regulations, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) for the account of the Holders otherwise entitled to such securities upon
an averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
SECTION 4.12 Available Information. The Company is subject to the periodic
reporting requirements of the Exchange Act and accordingly files certain
information with the Commission. These reports and documents can be inspected
and copied at the public reference facilities maintained by the Commission
located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000 and at
the Commission's New York City office located at Seven World Trade Center, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 4.13 Reports. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
mail to Holders copies of such reports when furnished by the Company pursuant to
Section 5.6.
SECTION 4.14 List of Holders. Promptly upon written request by the Company,
the Depositary shall furnish to the Company a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders, as
such information is reflected in the Depositary's records.
SECTION 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may
20
reasonably request to enable the Company or its agents to file necessary tax
reports with governmental authorities or agencies. The Depositary, the Custodian
or the Company and its agents may, but shall not be obligated to, file such
reports as are necessary to reduce or eliminate applicable taxes on dividends
and on other distributions in respect of Deposited Securities under applicable
tax treaties or laws for the Holders and Beneficial Owners. In accordance with
instructions from the Company and to the extent practicable, the Depositary or
the Custodian will take reasonable administrative actions to obtain tax refunds,
reduced withholding of taxes at source on dividends and other benefits under
applicable tax treaties or laws with respect to dividends and other
distributions on the Deposited Securities. Holders and Beneficial Owners of
American Depositary Shares may be required from time to time, and in a timely
manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary's or the Custodian's obligations under applicable law.
The Holders and Beneficial Owners shall indemnify the Depositary, the Company,
the Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders: (i) any taxes withheld by it; (ii) any taxes
withheld by the Custodian, subject to information being provided to the
Depositary by the Custodian; and (iii) any taxes withheld by the Company,
subject to information being provided to the Depositary by the Company. The
Depositary and the Custodian shall not be required to provide the Holders with
any evidence of the remittance by the Company (or its agents) of any taxes
withheld, or of the payment of taxes by the Company, except to the extent the
evidence is provided by the Company to the Depositary. Neither the Depositary
nor the Custodian shall be liable for the failure by any Holder or Beneficial
Owner to obtain the benefits of credits on the basis non-U.S. tax paid against
such Holder's or Beneficial Owner's income tax liability.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The Depositary
shall not incur any liability for any tax consequences that may be incurred by
Holders and Beneficial Owners on account of their ownership of the American
Depositary Shares, including without limitation, tax consequences resulting from
the Company (or any of its subsidiaries) being treated as a "Foreign Personal
Holding Company," or as a "Passive Foreign Investment Company" (in each case as
defined in the U.S. Internal Revenue Code, as amended, and the regulations
issued thereunder) or otherwise.
21
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company, subject, in all cases, to Section 7.8
hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, with the approval of
the Company, appoint a Registrar or one or more co-registrars for registration
of Receipts and transfers, combinations and split-ups, and to countersign such
Receipts in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary with the approval of the Company.
SECTION 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or shall incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
Brazil or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future of the Estatuto Social of the Company or any provision of or governing
any Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement or in the Estatuto Social of the Company or provisions
of or governing Deposited Securities, (iii) for any action or inaction in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Holder, any Beneficial Owner or
authorized representative thereof, or any other person believed by it in good
faith to be competent to give such advice or information, (iv) for the inability
by a Holder or Beneficial Owner to benefit from any distribution, offering,
right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of this
22
Deposit Agreement, made available to Holders of American Depositary Shares or
(v) for any consequential or punitive damages for any breach of the terms of
this Deposit Agreement.
The Depositary, its controlling persons, its agents, the Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be subject
to any liability under this Deposit Agreement or the Receipts to Holders or
Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, 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 (including fees and disbursements of
counsel) and liabilities 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).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the manner
in which any vote is cast or the effects of any vote, provided that any such
action or omission is in good faith and in accordance with the terms of this
Deposit Agreement. The Depositary shall not incur any liability for any failure
to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 30th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company 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, which removal shall be effective on the earlier of (i)
the 30th day after delivery thereof
23
to the Depositary (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due to it and on the written request of the Company,
shall (i) execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder (other than as contemplated in
Sections 5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title
and interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodian. The Depositary has initially appointed Banco
Itau S.A. as Custodian for the purpose of this Deposit Agreement. The Custodian
or its successors in acting hereunder shall be subject at all times and in all
respects to the direction of the Depositary for the Deposited Securities for
which the Custodian acts as custodian and shall be responsible solely to it. If
any Custodian resigns or is discharged from its duties hereunder with respect to
any Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary shall promptly appoint a substitute custodian that is
organized under the laws of Brazil. The Depositary shall require such resigning
or discharged Custodian to deliver the Deposited Securities held by it, together
with all such records maintained by it as Custodian with respect to such
Deposited Securities as the Depositary may request, to the Custodian designated
by the Depositary. Whenever the Depositary determines, in its discretion, that
it is appropriate to do so, it may appoint an additional custodian with respect
to any Deposited Securities, or discharge the Custodian with respect to any
Deposited Securities and appoint a substitute custodian, which shall thereafter
be Custodian hereunder with respect to the Deposited Securities. Immediately
upon any such change, the Depositary shall give notice thereof in writing to all
Holders of Receipts, each other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to be
the Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. 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 to act on
the direction of such successor depositary.
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SECTION 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Estatuto Social of the Company that may be
relevant or pertain to such notice of meeting or be the subject of a vote
thereat.
The Company will also transmit to the Depositary (a) an English language
version of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities and (b) the English-language versions of the Company's annual and
other reports prepared in accordance with the applicable requirements of the
Commission. The Depositary shall arrange, at the request of the Company and at
the Company's expense, for the mailing of copies thereof to all Holders or make
such notices, reports and other communications available to all Holders 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 or as 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 Company's Estatuto
Social along with the provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any Affiliate of the Company in
connection with such Shares, and promptly upon any amendment thereto or change
therein, the Company shall deliver to the Depositary and the Custodian a copy of
such amendment thereto or change therein. The Depositary may rely upon such copy
for all purposes of this Deposit Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
SECTION 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, it will obtain U.S. legal advice and take all
steps necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions of
the Securities Act, or any other applicable laws (including, without limitation,
the Investment Company Act of 1940, as amended, the Exchange Act or the
securities laws of the states of the United States). In support of the
foregoing, the Company will furnish to the Depositary (a) a written opinion of
U.S. counsel (reasonably satisfactory to the Depositary)
25
stating whether or not application of such transaction to Holders and Beneficial
Owners (1) requires a registration statement under the Securities Act to be in
effect or (2) is exempt from the registration requirements of the Securities Act
and (b) an opinion of Brazilian counsel (reasonably satisfactory to the
Depositary) stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of Brazil and (2) all
requisite regulatory consents and approvals have been obtained in Brazil. If the
filing of a registration statement is required, the Depositary shall not have
any obligation to proceed with the transaction unless it shall have received
evidence reasonably satisfactory to it that such registration statement has been
declared effective. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in this Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any of
its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Depositary agrees to indemnify the Company
and its directors, officers, employees, agents and Affiliates against, and hold
each of them harmless from, any direct loss, liability, tax, charge or expense
of any kind whatsoever (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary under the terms hereof due to the negligence or bad faith of the
Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of Receipts,
American Depositary Shares, the Shares, or other Deposited Securities, as the
case may be, (b) out of or as a result of any offering documents in respect
thereof or (c) out of acts performed or omitted, including, but not limited to,
any delivery by the Depositary on behalf of the Company of information regarding
the Company in connection with this Deposit Agreement, the Receipts, the
American Depositary Shares, the Shares, or any Deposited Securities, in any such
case (i) by the Depositary, the Custodian or any of their respective directors,
officers, employees, agents and Affiliates, except to the extent such loss,
liability, tax, charge or expense is due to the negligence or bad faith of any
of them, or (ii) by the Company or any of its directors, officers, employees,
agents and Affiliates.
26
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
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
(provided that the failure to make such notification shall not affect such
indemnified person's rights to indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable under the circumstances. No indemnified person shall
compromise or settle any action or claim that may give rise to an indemnity
hereunder without the consent of the indemnifying person, which consent shall
not be unreasonably withheld.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
SECTION 5.10 Pre-Release. Subject to the further terms and provisions of
this Section 5.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs or deliver Shares prior to the receipt and cancellation of
ADSs. Notwithstanding the foregoing, the Depositary may (i) issue ADSs prior to
the receipt of Shares (each such transaction a "Pre-Release Transaction") as
provided below and (ii) deliver Shares upon the receipt and cancellation of ADSs
that were issued in a Pre-Release Transaction, but for which Shares may not yet
have been received. The Depositary may receive ADSs in lieu of Shares under (i)
above. Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (1) represents that at the time of the Pre-Release
Transaction the
27
Applicant or its customer owns the Shares or ADSs that are to be delivered by
the Applicant under such Pre-Release Transaction, (2) agrees to indicate the
Depositary as owner of such Shares or ADSs in its records and to hold such
Shares or ADSs in trust for the Depositary until such Shares or ADSs are
delivered to the Depositary or the Custodian, (3) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs,
and (4) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to disregard such limit from time to time for
cancellations and other circumstances beyond its control. The Depositary may
also set limits with respect to the number of ADSs and Shares involved in
Pre-Release Transactions with any one person on a case by case basis as it deems
appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b) above,
but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
SECTION 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder and, to the extent practicable, shall require each of such
persons to represent in writing that such person will not deposit Restricted
Securities hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. The Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached hereto
and to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than charges in connection
with foreign exchange control regulations, and taxes and other governmental
charges, delivery and other such expenses), or which shall otherwise materially
prejudice any substantial existing right of Holders or Beneficial Owners, shall
not, however, become effective as to outstanding Receipts until 30 days after
notice of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the American Depositary Shares to be registered on
Form F-6 under the Securities Act or (b) the American Depositary Shares or the
Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
American
28
Depositary Share or Shares, to consent and agree to such amendment or supplement
and to be bound by the Deposit Agreement as amended and supplemented thereby. In
no event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 30 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4, the Depositary may
terminate this Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed for such termination. On and after the date of termination of this Deposit
Agreement, the Holder will, upon surrender of such Receipt at the Principal
Office of the Depositary, upon the payment of the charges of the Depositary for
the surrender of Receipts referred to in Section 2.7 and subject to the
conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights or other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in Section 2.7,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case, the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). At any time after the expiration of six
months from the date of termination of this Deposit Agreement, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement with
29
respect to the Receipts and the Shares, Deposited Securities and American
Depositary Shares, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). 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 5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for the
exclusive benefit of the parties hereto (and their successors) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties hereto nor establish a fiduciary
or similar relationship among the parties. The parties hereto acknowledge and
agree that (i) the Depositary and its Affiliates may at any time have multiple
banking relationships with the Company and its Affiliates, (ii) the Depositary
and its Affiliates may be engaged at any time in transactions in which parties
adverse to the Company or the Holders or Beneficial Owners may have interests
and (iii) nothing contained in this Agreement shall (a) preclude the Depositary
or any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, or (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the terms
and conditions hereof and of any Receipt by acceptance hereof or any beneficial
interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Copene-Petroquimica do Nordeste S.A., Rua Eteno, 1561, Polo
Petroquimico de Camacari, Camacari, Bahia, Brazil, Attention: Finance
Department, or to any other address which the Company may specify in writing to
the Depositary.
30
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank,
N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. Attention: ADR
Department, or to any other address which the Depositary may specify in writing
to the Company.
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Xxx Xxx
Xxxxx, 000, Xxx Xxxxx, Xxxxxx, or to any other address which the Custodian may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission, confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the transfer books for Receipts of the Depositary,
or, if such Holder shall have filed with the Depositary a written request that
notices intended for such Holder be mailed to some other address, at the address
specified in such request. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier 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 or delivered to an air courier service. The Depositary or the Company
may, however, act upon any cable, telex or facsimile transmission received by it
from the other or from any Holder, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the
"Agent") now at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, as its authorized agent to
receive and accept for and on its behalf, and on behalf of its properties,
assets and revenues, service by mail of any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
brought against the Company in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 7.6. If for any
reason the Agent shall cease to be available to act as such, the Company agrees
to designate a new agent in the City of New York on the terms and for the
purposes of this Section 7.6 reasonably satisfactory to the Depositary. The
Company further hereby irrevocably consents and agrees to the service of any and
all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section
31
7.5 hereof. The Company agrees that the failure of the Agent to give any notice
of such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any state or federal court of the United States,
and the Depositary or the Company have any claim, for indemnification or
otherwise, against each other arising out of the subject matter of such suit,
action or proceeding, then the Company and the Depositary may pursue such claim
against each other in the state or federal court in the United States in which
such suit, action, or proceeding is pending, and for such purposes, the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
The provisions of this Section 7.6 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
SECTION 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.9. Regulatory Compliance. The Depositary and the Company hereby
confirm to each other that, for as long as this Deposit Agreement is in effect,
they shall comply with any requirements for registration of the amount of
Deposited Securities with the Central Bank of Brazil and furnish the Brazilian
securities regulatory authority - the CVM and the Central Bank of Brazil such
information and documents related to the Deposited Securities, the Receipts and
the Depositary's obligations hereunder as may be requested by such authorities
from time to time pursuant to paragraph 3, article 3 of Regulation Annex V to
Resolution 1.289.87 (as published in Resolution 1.927/92) of the Brazilian
National Monetary Council. In the event that the Depositary or the Custodian
shall be advised in writing (the "Legal Warning") by Brazilian counsel
reasonably satisfactory to the Depositary that the Depositary or Custodian
reasonably could be subject to criminal or civil liabilities as a result of the
Company having failed to provide to the CVM or the Central Bank of Brazil such
information or documents available through the Company, the Depositary will
immediately send a copy of the Legal Warning to the Company, shall have the
right to immediately resign as Depositary by written notice to the Company and
32
will not be subject to any liability hereunder for such resignation or such
determination, and the Company agrees to indemnify the Depositary, the Custodian
and any of their respective officers, directors, employees, and agents against,
and hold each of them harmless from any loss or liability of any kind incurred
that arises under this Section 7.9. Upon effectiveness of such resignation, the
Depositary shall otherwise be discharged from all of its obligations under this
Deposit Agreement. Resignation pursuant to this paragraph shall be effected in
accordance with Section 5.4; provided that, if the Company fails to appoint a
new depositary within ninety (90) days of such resignation, this Deposit
Agreement shall be terminated in accordance with Section 6.2 and the Company or
its designated agents will assume the obligations stated as the obligations of
the Depositary in such section.
The provisions of this Section shall survive any termination of this
Deposit Agreement in whole or in part.
SECTION 7.10 Titles. All references in this Deposit Agreement to exhibits,
articles, sections, subsections, and other subdivisions refer to the exhibits,
articles, sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import refer to
the Deposit Agreement as a whole as in effect between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
33
IN WITNESS WHEREOF, COPENE - PETROQUIMICA DO NORDESTE S.A. and CITIBANK,
N.A. have duly executed this Deposit Agreement as of the day and year first
above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of American Depositary Shares evidenced by
Receipts issued in accordance with the terms hereof.
COPENE - PETROQUIMICA DO NORDESTE S.A.
By:
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Name:
Title:
By:
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Name:
Title:
CITIBANK, N.A.
By:
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Name:
Title:
34
