EMBRAER-EMPRESA BRASILEIRA DE AERONÁUTICA S.A.. (As Successor in Interest) AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Amended and Restated Deposit Agreement Dated as of April 4, 2006
EMBRAER-EMPRESA
BRASILEIRA DE AERONÁUTICA
S.A..
(As
Successor in Interest)
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of April 4, 2006
TABLE
OF CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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Section
1.
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Certain
Definitions
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(a)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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2
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(d)
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Articles
of Incorporation
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2
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(e)
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Custodian
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2
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(f)
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Deliver,
execute, issue et al.
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2
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(g)
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Delivery
Order
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2
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(h)
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Deposited
Securities
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2
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(i)
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Direct
Registration System
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2
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(j)
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Holder
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2
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(k)
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Securities
Act of 1933
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2
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(l)
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Securities
Exchange Act of 1934
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2
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(m)
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Shares
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3
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(n)
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Transfer
Office
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3
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(o)
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Withdrawal
Order
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3
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Section
2.
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ADRs
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3
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Section
3.
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Deposit
of Shares
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3
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Section
4.
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Issue
of ADRs
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4
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Section
5.
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Distributions
on Deposited Securities
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4
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Section
6.
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Withdrawal
of Deposited Securities
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4
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Section
7.
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Substitution
of ADRs
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5
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Section
8.
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Cancellation
and Destruction of ADRs
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5
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Section
9.
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The
Custodian
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5
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Section
10.
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Co-Registrars
and Co-Transfer Agents
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5
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Section
11.
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Lists
of Holders.
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5
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Section
12.
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Depositary's
Agents
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6
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Section
13.
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Successor
Depositary
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6
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Section
14.
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Reports
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6
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Section
15.
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Additional
Shares
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6
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Section
16.
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Indemnification
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6
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Section
17.
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Notices
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7
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Section
18.
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Miscellaneous
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8
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Section
19.
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Consent
to Jurisdiction
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8
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TESTIMONIUM
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9
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SIGNATURES
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9
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-i-
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Page
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EXHIBIT
A
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1)
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Issuance
of ADRs
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A-2
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(2)
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Withdrawal
of Deposited Securities
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A-2
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(3)
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Transfers
of ADRs
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A-3
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(4)
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Certain
Limitations
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A-3
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(5)
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Taxes
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A-4
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(6)
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Disclosure
of Interests
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A-4
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(7)
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Charges
of Depositary
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A-5
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(8)
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Available
Information
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A-5
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(9)
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Execution
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A-5
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Signature
of Depositary
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A-5
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Address
of Depositary's Office
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A-5
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FORM
OF REVERSE OF ADR
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A-6
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(10)
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Distributions
on Deposited Securities
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A-6
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(11)
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Conversion
of Foreign Currency
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A-6
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(12)
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Record
Dates
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A-7
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(13)
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Voting
of Deposited Securities
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A-7
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(14)
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Changes
Affecting Deposited Securities
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A-7
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(15)
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Exoneration
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A-8
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(16)
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Resignation
and Removal of Depositary; the Custodian
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A-8
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(17)
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Amendment
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A-8
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(18)
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Termination
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A-8
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(19)
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Appointment
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A-8
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-ii-
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of April 4, 2006 (the "Deposit
Agreement") among EMBRAER-EMPRESA BRASILEIRA DE AERONÁUTICA
S.A. and
its
successors (the "Company"), as successor in interest pursuant to the terms
of
the Protocol of
Merger
and Justification related to the restructuring of the Company, JPMORGAN CHASE
BANK,
N.A., as depositary hereunder (the "Depositary"), and all holders from time
to
time of American
Depositary Receipts issued hereunder ("ADRs") evidencing American Depositary
Shares
("ADSs") representing deposited Shares (defined below). 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. All
capitalized
terms used herein have the meanings ascribed to them in Section 1 or elsewhere
in this Deposit
Agreement.
W
I T N E
S S E T H
WHEREAS,
the Company and the Depositary entered into a Deposit Agreement dated as
of
July
20, 2000 (the "Old Deposit Agreement") to provide for the deposit of non-voting
preferred
shares of the Company with the Depositary or with the Custodian as agent of
Depositary for
the
purposes set forth in such Old Deposit Agreement, for the creation of American
depositary shares
representing such non-voting preferred shares so deposited and for the execution
and delivery
of American depositary receipts ("Old Receipts") evidencing the American
depositary shares;
WHEREAS,
as a result of a restructuring of the Company, each non-voting preferred share
of
the
Company was exchanged for a common share of Rio Han Empreendimentos e
Participações
S.A.,
as
successor to the Company; that was renamed Embraer-Empresa Brasileira
de
Aeronáutica
S.A
on March 31, 2006;
WHEREAS,
pursuant to the terms of paragraph (17) of the form of ADR of the Old
Deposit
Agreement, the Company and the Depositary now wish to amend and restate the
Old
Deposit
Agreement and the Old Receipts;
NOW
THEREFORE, in consideration of the premises, the parties hereto hereby amend
and
restate the Old Deposit Agreement and the Old Receipts in their entireties
as
follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder.
ADRs may be either in physical certificated form or Direct Registration ADRs.
ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs
(as
hereinafter defined), shall be substantially in the form of Exhibit A annexed
hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded
on the Direct Registration System. References to "ADRs" shall include
certificated ADRs
and
Direct Registration ADRs, unless the context otherwise requires. The form of
ADR
is hereby incorporated herein and made a part hereof; the provisions of the
form
of ADR shall be binding
upon the parties hereto.
-1-
(c) Subject
to paragraph (14) of the form of ADR, each "ADS"
evidenced by an ADR represents
the right to receive four Shares and a pro rata share in any other Deposited
Securities.
(d) "Articles
of Incorporation"
means
the "estatuto
social"
of the
Company, as the same
may
be amended from time to time.
(e) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the
context requires) and any additional or substitute Custodian appointed pursuant
to Section 9. The
initial Custodian on the date of this Deposit Agreement is Banco Itaú
S.A.
(f) The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an
electronic transfer or transfers in the Direct Registration System, and, when
used with respect to
ADRs
in physical certificated form, shall refer to the physical delivery, execution,
issuance, registration,
surrender, transfer or cancellation of certificates representing the
ADRs.
(g) "Delivery
Order"
is
defined in Section 3.
(h) "Deposited
Securities"
as of
any time means all Shares at such time deposited under
this Deposit Agreement and any and all other Shares, securities, property and
cash at such time
held
by the Depositary or the Custodian in respect or in lieu of such deposited
Shares and other
Shares, securities, property and cash.
(i) "Direct
Registration System"
means
the system for the uncertificated registration
of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the
Depositary pursuant to which the Depositary may record the ownership of ADRs
without the issuance
of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary
to the Holders entitled thereto. For purposes hereof, the Direct Registration
System shall
include access to the Profile Modification System maintained by DTC which
provides for automated
transfer of ownership between DTC and the Depositary.
(j) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(k) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(l) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
-2-
(m) "Shares"mean
the
common shares of the Company, and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(n) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(o) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices
in its American
depositary receipt business, or at the request of the Company typewritten and
photocopied
on plain or safety paper, and shall be substantially in the form set forth
in
the form of ADR,
with
such changes as may be required by the Depositary or the Company to comply
with
their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations
or restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations
of any number of ADSs. ADRs in certificated form shall be executed by the
Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary. ADRs
in
certificated form bearing the facsimile signature of anyone who was at the
time
of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that
such
officer has ceased to hold such office prior to the delivery of such
ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated
ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to issue to, or upon the written order of, the person or persons
designated in such order
a
Direct Registration ADR or ADRs evidencing the number of ADSs representing
such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer
or a certified extract of the Company’s
register in respect of such deposited Shares;
(c)
instruments
assigning to the Custodian or its nominee any distribution on or in respect
of
such deposited
Shares or indemnity therefor; and (d) proxies entitling the Custodian to vote
such deposited
Shares. As soon as practicable after the Custodian receives Deposited Securities
pursuant
to any such deposit or pursuant to paragraph (10) or (14) of the form of ADR,
the Custodian
shall present such Deposited Securities for registration of transfer into the
name of the Custodian
or its nominee, to the extent such registration is practicable, at the cost
and
expense of the
person making such deposit (or for whose benefit such deposit is made) and
shall
obtain evidence
satisfactory to it of such registration. Deposited Securities shall be held
by
the Custodian
for the account and to the order of the Depositary at such place or places
and
in such manner
as
the Depositary shall determine. Deposited Securities may be delivered by the
Custodian
to any person only under the circumstances expressly contemplated in this
Deposit Agreement.
To the extent that the provisions of or governing the Shares make delivery
of
certificates
therefor impracticable, Shares may be deposited hereunder by such delivery
thereof as the
Depositary or the Custodian may reasonably accept, including, without
limitation, by causing them
to
be credited to an account maintained by the Custodian for such purpose with
the
Company
or an accredited intermediary, such as a bank, acting as a registrar for the
Shares, together
with delivery of the documents, payments and Delivery Order referred to herein
to the Custodian
or the Depositary.
-3-
The
Depositary and the Custodian shall comply with reasonable written instructions
from the
Company or its Brazilian counsel to maintain registration of the amount of
Deposited Securities
with Banco Central do Brasil (the "Central Bank") and to furnish to the Central
Bank and
to
the Comissão
de
Valores Mobiliários
(the
"Securities Commission"), whenever reasonably required,
information or documents related to this Deposit Agreement, the ADRs and the
Deposited
Securities and distributions thereon, and may rely, and shall be fully protected
in relying,
on such written instructions from the Company or its Brazilian counsel in
respect of such registration,
information and documents.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery Order
by letter,
first class airmail postage prepaid, or, at the request, risk and expense of
the
person making the
deposit, by cable, telex or facsimile transmission. After receiving such notice
from the Custodian,
the Depositary, subject to this Deposit Agreement, shall properly issue at
the
Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested
and evidencing the aggregate ADSs to which such person is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
discretion that any distribution pursuant to paragraph (10) of the form of
ADR
is not practicable
with respect to any Holder, subject to paragraph (12) of the form of ADR, the
Depositary
may, after consultation with the Company if practicable, make such distribution
as it so
deems
practicable, including the distribution of foreign currency, securities or
property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the
retention thereof as Deposited Securities with respect to such Holder's ADRs
(without liability for
interest thereon or the investment thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby, the
Depositary
may require proper endorsement in blank of such ADR (or duly executed
instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered
to, or upon the written order of, any person designated in such order (a
"Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder,
by cable, telex or facsimile transmission. Delivery of Deposited Securities
may
be made by the delivery of certificates (which, if required by law shall be
properly endorsed or accompanied
by properly executed instruments of transfer or, if such certificates may be
registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order)
or
by such other means as the Depositary may deem practicable, including, without
limitation,
by transfer of record ownership thereof to an account designated in the
Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar
for the Deposited Securities.
-4-
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon
cancellation
thereof or in lieu of and in substitution for such destroyed, lost or stolen
certificated ADR,
unless the Depositary has notice that such ADR has been acquired by a bona
fide
purchaser, upon
the
Holder thereof filing with the Depositary a request for such execution and
delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed by
the
Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy ADRs in
certificated form
so
cancelled in accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may, after
consultation with the
Company if practicable, from time to time appoint one or more agents to act
for
it as Custodian
hereunder. The Depositary shall use reasonable commercial efforts to ensure
that
at all times
there is a Custodian hereunder. The Depositary shall be responsible for the
compliance by the
Custodian with the provisions of this Deposit Agreement applicable specifically
to the Custodian.
Each Custodian so appointed (other than JPMorgan Chase Bank, N.A.) shall give
written
notice to the Company and the Depositary accepting such appointment and agreeing
to be bound
by
the applicable terms hereof. Any Custodian may resign from its duties hereunder
by at least
30
days written notice to the Depositary. The Depositary may discharge any
Custodian at any
time
upon notice to the Custodian being discharged. To the extent required by law,
the Depositary
shall provide the Securities Commission with notice of any Custodian removed
hereunder.
Any Custodian ceasing to act hereunder as Custodian shall deliver, upon the
instruction
of the Depositary, all Deposited Securities held by it to a Custodian continuing
to act.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars
to register ADRs and transfers, combinations and split-ups of ADRs and to
countersign
ADRs in accordance with the terms of any such appointment and (ii) co-transfer
agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer
offices in addition to the Transfer Office on behalf of the Depositary. Each
co-registrar or co-transfer
agent (other than JPMorgan Chase Bank, N.A.) shall give notice in writing to
the
Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms of this Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and its agents to supply copies of such portions of such records
as
the Company may request. The Depositary
or its agent shall furnish to the Company promptly upon the written request
of
the Company,
a list of the names, addresses and holdings of ADSs by all Holders as of a
date
within seven
days of the Depositary's receipt of such request.
-5-
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company
of such appointment and shall remain responsible for the performance of such
obligations
as if no agent were appointed.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by
60
days prior written notice of its election so to do delivered to the Company.
The
Depositary may
at
any time be removed by the Company by 60 days prior written notice of such
removal. Notwithstanding
anything to the contrary contained herein, in case at any time the Depositary
acting
hereunder shall resign or be removed, it shall continue to act as Depositary
for
the purpose of
terminating this Deposit Agreement pursuant to paragraph (18) of the form of
ADR. Any bank or
trust
company into or with which the Depositary may be merged or consolidated, or
to
which the
Depositary shall transfer substantially all its American depositary receipt
business, shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
14.
Reports.
On or
before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securities regulatory
authority or
stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy
thereof in English or with an English translation or summary. The Company has
delivered to
the
Depositary, the Custodian and any Transfer Office, a copy of all provisions
of
or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company
and, promptly upon any change thereto, the Company shall deliver to the
Depositary, the
Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions
as so changed. The Depositary and its agents may rely upon the Company's
delivery thereof
for all purposes of this Deposit Agreement.
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or
under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities
or shall deposit any Shares under this Deposit Agreement, except under
circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts
to comply with written instructions of the Company not to accept for deposit
hereunder any Shares
identified in such instructions at such times and under such circumstances
as
may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with securities
laws in the United States.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its agents against any loss, liability or expense (including reasonable
fees
and expenses
of counsel) which may arise out of acts performed or omitted, in connection
with
the provisions
of this Deposit Agreement and of the ADRs, as the same may be amended, modified
or supplemented
from time to time in accordance herewith (i) by either the Depositary or its
agents or their respective directors, employees, agents and affiliates, except,
subject to the penultimate paragraph
of this Section 16, for any liability or expense directly arising out of the
negligence or bad
faith
of the Depositary, or (ii) by the Company or any of its directors, employees,
agents or affiliates.
-6-
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense
which may arise out of any misstatement or alleged misstatement or omission
or
alleged omission
in any registration statement, proxy statement, prospectus (or placement
memorandum), or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the
Depositary or its agents (other than the Company), as applicable, furnished
in
writing by the Depositary
and not changed or altered by the Company expressly for use in any of the
foregoing documents
or (ii) if such information is provided, the failure to state a material fact
necessary to make
the
information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable fees
and
expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the
extent such loss, liability or expense is due to the negligence or bad faith
of
the Depositary or its
agents (including, without limitation, the Custodian) acting
hereunder.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other
for
any indirect, special, punitive or consequential damages (collectively "Special
Damages")
except (i) to the extent such Special Damages arise from the gross negligence
or
willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages
arise from or out of a claim brought by a third party (including, without
limitation, Holders)
against the Depositary or its agents, except to the extent such Special Damages
arise out of
the
gross negligence or willful misconduct of the party seeking indemnification
hereunder
Any
person seeking indemnification hereunder shall notify in writing the person
from
whom
indemnification is sought of the commencement of any indemnifiable action as
promptly as
practicable after the person seeking indemnification becomes aware of such
commencement, provided
that failure to make such notification shall not affect such person’s
rights
hereunder except
to
the extent that such failure was prejudicial. Any person seeking indemnification
hereunder
shall consult with the person from whom indemnification is sought as to the
conduct of any
defense. No person seeking indemnification hereunder shall compromise or settle
any indemnifiable
action without the prior written consent of the person from whom indemnification
is
sought
(which consent shall not unreasonably (from the point of view of the person
seeking indemnification)
be withheld) unless the person from whom indemnification is sought is not liable
for
any
damages under such settlement.
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice to the Depositary or the Company shall be deemed given when
first
received by it at the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
-7-
|
(a)
|
JPMorgan
Chase Bank, N.A.
|
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
| (b) |
Embraer-Empresa
Brasileira de Aeronáutica
S.A.
|
Xx.
Xxxxxxxxxx Xxxxx Xxxx, 0000
12227-901
São
Xxxx dos
Xxxxxx, São
Paulo
Brazil
Attn:
Xxxx Xxxxxxx Xxxxxxxxxxx
Phone
-
00 00 0000-0000
Fax
- 00
00 0000 0000
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners of ADRs
from
time to time shall be parties to this Deposit Agreement and shall be bound
by
all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable
in
any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed
in any number of counterparts, each of which shall be deemed an original and
all
of which
shall constitute one instrument. The Deposit Agreement shall be governed by
and
construed
in accordance with the laws of the State of New York.
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding
against the Company brought by the Depositary or any Holder, arising out of
or
based upon
this
Deposit Agreement or the transactions contemplated hereby, may be instituted
in
any state
or
federal court in New York, New York, and irrevocably waives any objection which
it may now
or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company has
appointed National Registered Agents, Inc., at 000 Xxxxxx xx xxx Xxxxxxxx,
Xxxxx
000, Xxx Xxxx,
XX
00000 (phone 0-000-000-0000), as its authorized agent (the "Authorized Agent")
upon which
process may be served in any such action arising out of or based on this Deposit
Agreement or
the
transactions contemplated hereby which may be instituted in any state or federal
court in New
York,
New York by the Depositary or any Holder, and waives any other requirements
of
or objections
to personal jurisdiction with respect thereto. The Company represents and
warrants that
the
Authorized Agent has agreed to act as said agent for service of process, and
the
Company agrees
to
take any and all action, including the filing of any and all documents and
instruments, that
may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of
process upon the Authorized Agent and written notice of such service to the
Company shall be deemed,
in every respect, effective service of process upon the Company. If, for any
reason, the Authorized
Agent named above or its successor shall no longer serve as agent of the Company
to receive service of process in New York, the Company shall promptly appoint
a
successor acceptable
to the Depositary, so as to serve and will promptly advise the Depositary
thereof. In the
event
the Company fails to continue such designation and appointment in full force
and
effect, the
Company hereby waives personal service of process upon it and consents that
any
such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Company
at its address last specified for notices hereunder, and service so made shall
be deemed completed
five (5) days after the same shall have been so mailed. Notwithstanding the
foregoing, any
action based on this Agreement may be instituted by the Depositary or any Holder
in any competent
court in The Federative Republic of Brazil.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may
hereafter be entitled to, or have attributed to it, any right of immunity,
on
the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of
any
relief in any
respect thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment,
or from execution of judgment, or other legal process or proceeding for the
giving of any
relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any
time
be commenced, with respect to its obligations, liabilities or other matter
under
or arising out
of or
in connection with the Shares or Deposited Securities, the ADSs, the ADRs or
this Agreement,
the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief
and enforcement.
-8-
IN
WITNESS WHEREOF, EMBRAER-EMPRESA BRASILEIRA DE AERONÁUTICA
S.A.
and
JPMORGAN CHASE BANK, N.A. have duly executed this Deposit Agreement
as of the day and year first above set forth and all holders of ADRs shall
become parties
hereto upon acceptance by them of ADRs issued in accordance with the terms
hereof.
EMBRAER-EMPRESA
BRASILEIRA DE
AERONÁUTICA
S.A., as successor in interest
By:
Name:
Title:
JPMORGAN
CHASE BANK, N.A.
By:
Name:
Title:
Vice President
-9-
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
|
No.
of ADSs:
|
||
| ______ | __________ | |
|
Number
|
Each
ADS represents
Four
Shares
|
|
|
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
EMBRAER-EMPRESA
BRASILEIRA DE AERONÁUTICA
S.A.
(Incorporated
under the laws of The Federative Republic of Brazil)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under
the
laws of the United States of America , as depositary hereunder (the
"Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares
("ADSs"), each (subject to paragraph (14)) representing four common shares
(including the rights
to
receive Shares described in paragraph (1), "Shares" and, together with any
other
securities,
cash or property from time to time held by the Depositary in respect or in
lieu
of deposited
Shares, the "Deposited Securities"), of Embraer-Empresa Brasileira de
Aeronáutica
S.A.,
a
corporation organized under the laws of the Federative Republic of Brazil (the
"Company"),
deposited under the Amended and Restated Deposit Agreement dated as of April
4,
2006
(as
amended from time to time, the "Deposit Agreement") among the Company, the
Depositary
and all Holders from time to time of American Depositary Receipts issued
thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and
this
ADR (which includes the provisions set forth on the reverse hereof) shall be
governed by and
construed in accordance with the laws of the State of New York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at
the
Transfer
Office (defined in paragraph (3)) only against deposit with the Custodian of:
(a) Shares in
form
satisfactory to the Custodian; (b) rights to receive Shares from the Company
or
any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or,
(c)
unless requested in writing by the Company to cease doing so at least two
business days in advance
of the proposed deposit, other rights to receive Shares (until such Shares
are
actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released
ADRs
are fully
collateralized (marked to market daily) with cash or such other collateral
as
the Depositary deems
appropriate held by the Depositary for the benefit of Holders (but such
collateral shall not constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs represents
and
agrees in
writing with the Depositary that such recipient or its customer (a) beneficially
owns such Shares,
(b) assigns all beneficial right, title and interest therein to the Depositary,
(c) holds such Shares
for the account of the Depositary in its capacity as such and for the benefit
of
Holders and beneficial
owners and (d) will deliver such Shares to the Custodian as soon as practicable
and promptly
upon demand therefor and (iii) all Pre-released ADRs evidence not more than
30%
of all ADSs
(excluding those evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate and may,
with
the prior consent of the Company change such limit for purposes of general
application. The
Depositary may retain for its own account any earnings on collateral for
Pre-released ADRs and
its
charges for issuance thereof. At the request, risk and expense of the person
depositing Shares,
the Depositary may accept deposits for forwarding to the Custodian and may
deliver ADRs
at a
place other than its office. Every person depositing Shares under the Deposit
Agreement
represents and warrants that such Shares are validly issued and outstanding,
fully paid, nonassessable
and free of pre-emptive rights, that the person making such deposit is duly
authorized
so to do and that such Shares (A) are not "restricted securities" as such term
is defined in
Rule
144 under the Securities Act of 1933 unless at the time of deposit they may
be
freely transferred
in accordance with Rule 144(k) and may otherwise be offered and sold freely
in
the United
States or (B) have been registered under the Securities Act of 1933. Such
representations and
warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly
accept for deposit under the Deposit Agreement any Shares required to be
registered under
the
Securities Act of 1933 and not so registered; the Depositary may refuse to
accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance
with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of
(i) a
certificated ADR in form satisfactory to the Depositary at the Transfer Office
or (ii) proper instructions
and documentation in the case of a Direct Registration ADR, the Holder hereof
is
entitled
to delivery at, or to the extent in dematerialized form from, the Custodian's
office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk
and
expense of the Holder hereof, the Depositary may deliver such Deposited
Securities at such
other place as may have been requested by the Holder. Notwithstanding any other
provision of
the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only
for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be
amended from time to time) under the Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
in
the Borough of Manhattan, The City of New York (the "Transfer Office"), (a)
a
register (the
"ADR
Register") for the registration, registration of transfer, combination and
split-up of ADRs,
and, in the case of Direct Registration ADRs, shall include the Direct
Registration System, which
at
all reasonable times will be open for inspection by Holders and the Company
for
the purpose
of communicating with Holders in the interest of the business of the Company
or
a matter relating
to the Deposit Agreement and (b) facilities for the delivery and receipt of
ADRs. The term ADR
Register includes the Direct Registration System. Title to this ADR (and to
the
Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed (in the case
of ADRs
in
certificated form) or upon delivery to the Depositary of proper instruments
of
transfer, is transferable
by delivery with the same effect as in the case of negotiable instruments under
the laws
of
the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register
as
the absolute
owner hereof for all purposes and neither the Depositary nor the Company will
have any obligation
or be subject to any liability under the Deposit Agreement to any holder of
an
ADR, unless
such holder is the Holder thereof. Subject to paragraphs (4) and (5), this
ADR
is transferable
on the ADR Register and may be split into other ADRs or combined with other
ADRs
into
one
ADR, evidencing the aggregate number of ADSs surrendered for split-up or
combination, by
the
Holder hereof or by duly authorized attorney upon surrender of this ADR at
the
Transfer Office
properly endorsed (in the case of ADRs in certificated form) or upon delivery
to
the Depositary
of proper instruments of transfer and duly stamped as may be required by
applicable law;
provided
that the
Depositary may close the ADR Register at any time or from time to time
when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary
shall, for the purpose of substituting a certificated ADR with a Direct
Registration ADR,
or
vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR,
as the case
may
be, for any authorized number of ADSs requested, evidencing the same aggregate
number
of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR,
as
the case
may
be, substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of any ADR, the delivery of any distribution in respect thereof, or, subject
to
the last sentence
of paragraph (2), the withdrawal of any Deposited Securities, and from time
to
time in the
case
of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require:
(a) payment with respect thereto of (i) any stock transfer or other tax or
other
governmental
charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers
of Shares or other Deposited Securities upon any applicable register and (iii)
any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory
to it of (i) the identity of any signatory and genuineness of any signature
and
(ii) such other
information, including without limitation, information as to citizenship,
residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and
this
ADR, as it may deem necessary or proper; and (c) compliance with such
regulations as the
Depositary may establish consistent with the Deposit Agreement and any
regulations which the
Depositary is informed of in writing by the Company which are deemed desirable
by the Depositary, the Company or the Custodian to facilitate compliance with
any applicable rules or regulations
of the Banco Central do Brasil or Comissão
de
Valores Mobiliários.
The
issuance of ADRs,
the
acceptance of deposits of Shares, the registration, registration of transfer,
split-up or combination
of ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited
Securities may be suspended, generally or in particular instances, when the
ADR
Register
or any register for Deposited Securities is closed or when any such action
is
deemed advisable
by the Depositary or the Company.
A-3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf
of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by
the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall
be
paid by the Holder hereof to the Depositary. The Depositary may refuse to effect
any registration,
registration of transfer, split-up or combination hereof or, subject to the
last
sentence of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary
may also deduct from any distributions on or in respect of Deposited Securities,
or may
sell
by public or private sale for the account of the Holder hereof any part or
all
of such Deposited
Securities (after attempting by reasonable means to notify the Holder hereof
prior to such
sale), and may apply such deduction or the proceeds of any such sale in payment
of such tax or
other
governmental charge, the Holder hereof remaining liable for any deficiency,
and
shall reduce
the number of ADSs evidenced hereby to reflect any such sales of Shares. In
connection with
any
distribution to Holders, the Company will remit to the appropriate governmental
authority
or agency all amounts (if any) required to be withheld and owing to such
authority or agency
by
the Company; and the Depositary and the Custodian will remit to the appropriate
governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority
or agency by the Depositary or the Custodian. The Depositary will forward to
the
Company
such information from its records as the Company may reasonably request to
enable the Company
to file any necessary reports with governmental authorities or agencies, and
either the Company
or the Depositary may file any such reports necessary to obtain benefits under
any applicable
tax treaties for Holders. The Depositary shall cooperate with the Company in
the
Company's
efforts to make and maintain arrangements enabling Holders to receive any tax
credits or
other
benefits (pursuant to treaty or otherwise) relating to dividend payments on
the
ADSs, and the
Depositary shall, to the extent reasonably practicable, provide the Company
with
such documents
as the Company may reasonably request to maintain such arrangements. If the
Depositary
determines that any distribution in property other than cash (including Shares
or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold,
the Depositary may dispose of all or a portion of such property in such amounts
and in such
manner as the Depositary deems necessary and practicable to pay such taxes,
by
public or private
sale, and the Depositary shall distribute the net proceeds of any such sale
or
the balance of any
such
property after deduction of such taxes to the Holders entitled thereto. Each
Holder of an ADR
or an
interest therein agrees to 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.
(6)
Disclosure
of Interests.
Holders
and holders of interests in ADSs will be subject to the provisions
of the Company’s
Articles of Incorporation, to Instruction Xx. 000/00 xx xxx Xxxxxxxx
xx
Xxxxxxx Mobiliários
( the
Brazilian securities commission, or the “CVM”)
(“Instruction No. 358/02"),
and any other regulations of Brazil or the U.S. securities laws relating to
disclosure of interests
in Shares. Under Instruction No. 358/02, a Holder, a holder of an interest
in
ADSs, or groups
of
holders or of holders of an interest in ADSs, will have a duty to notify the
Company and the
stock
exchanges on which the Company’s securities are traded if such Holder, holder of
an interest
in ADSs, or groups of holders or of holders of an interest in ADSs, acquires
Shares that, together
with the Shares already held by them, equals or exceeds 5% of the capital stock
of the Company.
Such Holder, holder of an interest in ADSs, or groups of holders or of holders
of an interest
in ADSs may be required to further notify the Company and stock exchanges on
which the Company’s
securities are traded of certain changes in ownership of the Shares after the
first notification.
Under Instruction No. 358/02, the Company may make inquiries if the Company
knows
or
has reasonable cause to believe that a Holder, a holder of an interest in ADSs,
or groups of
holders or of holders of an interest in ADSs has any interest in Shares
(including its interest in Shares
represented by ADSs. Holders and beneficial owners of interests in ADRs agree
to
comply with
all
such disclosure requirements, inquiries and ownership limitations and to comply
with any reasonable
Company instructions in respect thereof.
The
Company reserves the right to instruct Holders
to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so as to permit
the Company to deal directly with the Holder thereof as a holder of Shares
and
Holders agree
to
comply with such instructions. The Depositary agrees to cooperate with the
Company in its
efforts to inform Holders of the Company's exercise of its rights under this
paragraph and agrees
to
consult with, and provide reasonable assistance without risk, liability or
expense on the part
of
the Depositary, to the Company on the manner or manners in which it may enforce
such rights
with respect to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may charge (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of
Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant
to a merger, exchange of securities or any other transaction or event
affecting the ADSs or
the
Deposited Securities, and (ii) each person surrendering ADSs for withdrawal
of Deposited Securities
or whose ADSs are cancelled or reduced for any other reason, U.S. $5.00 for
each
100 ADSs
(or
portion thereof) issued, delivered, reduced, cancelled or surrendered (as
the case may be).
The
Depositary may sell (by public or private sale) sufficient securities and
property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge.
The following additional charges shall be incurred by the Holders, by any party
depositing or
withdrawing Shares or by any party surrendering ADRs, to whom ADRs are issued
(including, without
limitation, issuance pursuant to a stock dividend or stock split declared by
the
Company or
an
exchange of stock regarding the ADRs or the Deposited Securities or a
distribution of ADRs pursuant
to paragraph (10)), whichever is applicable (i) to the extent not prohibited
by
the rules of the
primary stock exchange upon which the ADSs are listed, a fee of $.02 or less
per
ADS (or portion
thereof) for any Cash distribution made pursuant to the Deposit Agreement,
(ii)
to the extent
not prohibited by the rules of the primary stock exchange upon which the ADSs
are listed, a
fee of
$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii)
a fee for
the
distribution or sale of securities pursuant to paragraph (10) hereof, such
fee
being in an amount
equal to the fee for the execution and delivery of ADSs referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this paragraph (7) treating
all such securities as if they were Shares) but which securities or the net
cash
proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
to
the
extent not prohibited by the rules of the primary stock exchange upon which
the
ADSs are listed,
a
fee of US$0.02 per ADS (or portion thereof) per year for the services performed
by the Depositary
in administering the ADRs (which fee shall be assessed against Holders as of
the
record
date or dates set by the Depositary not more than once each calendar year and
shall be payable
at the sole discretion of the Depositary by billing such Holders or by deducting
such charge
from one or more cash dividends or other cash distributions), and (v) such
fees
and expenses
as are incurred by the Depositary (including without limitation expenses
incurred on behalf
of
Holders in connection with compliance with foreign exchange control regulations
or any law
or
regulation relating to foreign investment) in delivery of Deposited Securities
or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation.
The Company will pay all other charges and expenses of the Depositary and any
agent of
the
Depositary (except the Custodian) pursuant to agreements from time to time
between the Company
and the Depositary, except (i) stock transfer or other taxes and other
governmental charges
(which are payable by Holders or persons depositing Shares), (ii) cable, telex
and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders
delivering Shares, ADRs or Deposited Securities (which are payable by such
persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any
applicable register in connection with the deposit or withdrawal of Deposited
Securities (which
are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there
are
no such fees in respect of the Shares as of the date of the Deposit Agreement),
(iv) expenses
of the Depositary in connection with the conversion of foreign currency into
U.S. dollars (which
are paid out of such foreign currency), and (v) any other charge payable by
any
of the Depositary,
any of the Depositary’s
agents,
including, without limitation, the custodian, or the agents
of
the Depositary’s agents in connection with the servicing of the Shares or other
Deposited
Securities (which charge shall be assessed against Holders as of the record
date
or dates set
by
the depositary and shall be payable at the sole discretion of the Depositary
by
billing such Holders
or by deducting such charge from one or more cash dividends or other cash
distributions). Such
charges may at any time and from time to time be changed by agreement between
the Company
and the Depositary.
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received by
the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to
the
holders of Deposited Securities, are available for inspection by Holders at
the
offices of the Depositary
and the Custodian and at the Transfer Office. The Depositary will distribute
copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange
Act of 1934 and accordingly files certain reports with the United States
Securities and Exchange
Commission (the "Commission"). Such reports and other information may be
inspected
and copied at public reference facilities maintained by the Commission located
at the date
hereof at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
By
..................................................
Authorized
Officer
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-5
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto
on
the record date set
by
the Depositary therefor at such Holder's address shown on the ADR Register,
in
proportion to
the
number of Deposited Securities (on which the following distributions on
Deposited Securities
are received by the Custodian) represented by ADSs evidenced by such Holder's
ADRs: (a)
Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash
distribution or the net proceeds of sales of any other distribution or portion
thereof authorized
in this paragraph (10) ("Cash"), on an averaged or other practicable basis,
subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible
or
impracticable
with respect to certain Holders, and (iii) deduction of the Depositary's
expenses in (1)
converting any foreign currency to U.S. dollars by sale or in such other manner
as the Depositary
may determine to the extent that it determines that such conversion may be
made
on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States
by
such means
as
the Depositary may determine to the extent that it determines that such transfer
may be made
on a
reasonable basis, (3) obtaining any approval or license of any governmental
authority required
for such conversion or transfer, which is obtainable at a reasonable cost and
within a reasonable
time and (4) making any sale by public or private means in any commercially
reasonable
manner. If the Company shall have advised the Depositary pursuant to the
provisions of
the
Deposit Agreement that any such conversion, transfer or distribution can be
effected only with
the
approval or license of the Brazilian government or any agency thereof or the
Depositary shall
become aware of any other governmental approval or license required therefor,
the Depositary
may, in its discretion, apply for such approval or license, if any, as the
Company or its Brazilian
counsel may reasonably instruct in writing or as the Depositary may deem
desirable including,
without limitation, Central Bank registration. (b) Shares.
(i)
Additional ADRs evidencing
whole ADSs representing any Shares available to the Depositary resulting from
a
dividend
or free distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and
(ii)
U.S. dollars available to it resulting from the net proceeds of sales of Shares
received in a Share
Distribution, which Shares would give rise to fractional ADSs if additional
ADRs
were issued
therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion
of the Depositary representing rights to acquire additional ADRs in respect
of
any rights to
subscribe for additional Shares or rights of any nature available to the
Depositary as a result of a
distribution on Deposited Securities ("Rights"), to the extent that the Company
timely furnishes to
the
Depositary evidence satisfactory to the Depositary that the Depositary may
lawfully distribute
the same (the Company has no obligation to so furnish such evidence), or (ii)
to
the extent
the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash,
or
(iii) to the extent the Company does not so furnish such evidence and such
sales
cannot practicably
be accomplished by reason of the nontransferability of the Rights, limited
markets therefor,
their short duration or otherwise, nothing (and any Rights may lapse). (d)
Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on
Deposited Securities other than Cash, Share Distributions and Rights ("Other
Distributions"), by
any
means that the Depositary, after consultation with the Company if practicable,
may deem equitable
and practicable, or (ii) to the extent the Depositary deems distribution of
such
securities or
property not to be equitable and practicable, any U.S. dollars available to
the
Depositary from the
net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Fractional
cents will be withheld without liability and dealt with by the Depositary in
accordance with
its
then current practices.
(11)
Conversion
of Foreign Currency.
Whenever the Depositary or the Custodian shall receive
foreign currency, as a Cash dividend or Other Distribution or as the net
proceeds from the sale
of
securities, property or rights, which, in the judgment of the Depositary can
then be converted
on a reasonable basis into U.S. dollars which can, at the time of receipt
thereof, be transferred
to the United States, the Depositary shall, as promptly as practicable, convert
or cause to
be
converted, by sale or in any other manner that it may determine, such foreign
currency into U.S.
dollars and shall transfer the resulting U.S. dollars (net of its charges and
expenses in effecting
such conversion) to the United States. Such U.S. dollars shall be distributed
as
promptly as
practicable to the Holders entitled thereto or, if the Depositary shall have
distributed any warrants
or other instruments that entitle the holders thereof to such U.S. dollars,
then
to the holders
of such warrants or instruments, as applicable, upon surrender thereof for
cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions
among Holders on account of exchange restrictions or otherwise. If such
conversion or
distribution can be effected only with the approval or license of any government
or agency thereof,
including without limitation, Central Bank registration, the Depositary shall,
at the written
request of the Company, unless prohibited pursuant to applicable law or
otherwise impracticable
in the reasonable opinion of the Depositary, file such application for approval
or license,
if any, as it shall deem practicable; provided, however that the Depositary
shall be entitled to
rely
upon Brazilian local counsel in such matters, which counsel shall be instructed
to act as promptly
as possible. The Company shall not be obliged to make any such filing on behalf
of the Depositary.
If at any time the Depositary shall determine that in its reasonable judgment
any foreign
currency received by the Depositary is not convertible on a reasonable basis
into U.S. dollars
transferable to the United States, or if any approval or license of any
governmental authority
or agency thereof that is required for such conversion is denied or in the
opinion of the Depositary
is not obtainable at a reasonable cost or within a reasonable period, the
Depositary may,
subject to applicable laws and regulations, and after consultation with the
Company, either distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign
currency) to, or hold such foreign currency (without liability for interest
thereon) for the respective
accounts of, the Holders entitled to receive the same; provided, however, that
if requested
in writing by a Holder entitled thereto, the Depositary may, in its discretion,
distribute the
foreign currency, as promptly as practicable. If any such conversion of foreign
currency, in whole
or
in part, can be effected for distribution to some but not all of the Holders
entitled thereto, the
Depositary shall make such conversion and distribution in U.S. dollars to the
extent permissible
to the Holders entitled thereto and may either so distribute or hold such
balance (without
liability for interest thereon) for the respective accounts of, the Holders
entitled thereto for
whom
such conversion and distribution is not practicable; provided, however, that
if
requested in
writing by a Holder entitled thereto and permitted by applicable law, the
Depositary may, in its discretion,
distribute the foreign currency, as promptly as practicable.
A-6
(12)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable,
fix a record date (which, to the extent applicable, shall be as near as
practicable to any corresponding
record date set by the Company) for the determination of the Holders who shall
be responsible
for the fee assessed by the Depositary for administration of the ADR program
and
for any
expenses provided for in paragraph (7) hereof as well as for the determination
of the Holders who
shall
be entitled to receive any distribution on or in respect of Deposited
Securities, to give instructions for the exercise of any voting rights, to
receive any notice or to act in respect of other matters
and only such Holders shall be so entitled or obligated.
(13)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders
of
Shares or other
Deposited Securities, as soon as practicable after receipt from the Company
of
notice of any meeting
or solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the
Depositary shall distribute to Holders a notice stating (a) such information
as
is contained in such
notice and any solicitation materials, (b) that each Holder on the record date
set by the Depositary
therefor will, subject to any applicable provisions of Brazilian law and the
Company's Articles
of Incorporation, be entitled to instruct the Depositary as to the exercise
of
the voting rights,
if any, pertaining to the Deposited Securities represented by the ADSs evidenced
by such Holder's
ADRs and (c) the manner in which such instructions may be given, including
instructions to
give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of
a
Holder on such record date in the manner and on or before the date established
by the Depositary
for such purpose, the Depositary shall endeavor insofar as practicable and
permitted under
the
provisions of or governing Deposited Securities to vote or cause to be voted
the
Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with
such
instructions and subject to the rules on limitation on voting rights of certain
shareholders
provided for in the Company’s
Articles of Incorporation.
The
Depositary will not itself
exercise any voting discretion in respect of any Deposited Securities. Each
Holder will be deemed
to
be a non-Brazilian shareholder for the purposes of the limitation on the voting
rights of non-Brazilian
shareholders set forth in the Company’s
Articles of Incorporation, unless such Holder
provides the Depositary and the Company with sufficient evidence to establish
that such shareholder
is a “Brazilian shareholder” as defined in the Company’s Articles of
Incorporation. The
Depositary shall have no obligation to request or assist in obtaining or
providing any such evidence
and shall have no obligations to Holders or any other person or entity with
respect to the application
by the Company of the limitations on voting provided for in the Company's
Articles of Incorporation.
Holders and persons holding interests in ADSs are encouraged to read the
Company's
Articles of Incorporation, and to seek their own legal and financial guidance,
to understand
such voting limitations.
There
is
no guarantee that Holders generally or any Holder in particular will receive
the
notice
described above with sufficient time to enable such Holder to return any voting
instructions
to the Depositary in a timely manner.
(14)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended
ADRs
(with
or
without calling this ADR for exchange) or cash, securities or property on the
record date
set
by the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation
or other reclassification of Deposited Securities, any Share Distribution or
Other Distribution
not distributed to Holders or any cash, securities or property available to
the
Depositary
in respect of Deposited Securities from (and the Depositary is hereby authorized
to surrender
any Deposited Securities to any person and, irrespective of whether such
Deposited Securities
are surrendered or otherwise cancelled by operation of law, rule, regulation
or
otherwise,
to sell by public or private sale any property received in connection with)
any
recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy
or
sale of all or substantially all the assets of the Company, and to the extent
the Depositary does not
so
amend this ADR or make a distribution to Holders to reflect any of the
foregoing, or the net
proceeds thereof, whatever cash, securities or property results from any of
the
foregoing shall
constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent
its pro rata interest in the Deposited Securities as then
constituted.
A-7
(15)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a)
incur
no liability (i) if any present or future law, rule or regulation of the United
States, the Federative
Republic of Brazil or any other country, or of any governmental or regulatory
authority
or any securities exchange or market or automated quotation system, the
provisions of or
governing any Deposited Securities, any present or future provision of the
Company's charter, any
act
of God, war, terrorism or other circumstance beyond its control shall prevent,
delay or subject
to any civil or criminal penalty
any act which the Deposit Agreement or this ADR provides
shall be done or performed by
it or
them (including, without limitation, voting pursuant to
paragraph (13) hereof), or (ii) by reason of any exercise or failure to exercise
any discretion given
it
in the Deposit Agreement or this ADR; (b) assume no obligation and shall not
be
subject
to any liability except to perform its obligations to the extent they are
specifically set forth
in
this ADR and the Deposit Agreement without gross negligence or bad faith; (c)
in
the case
of
the Depositary and its agents, be under no obligation to appear in, prosecute
or
defend any
action, suit or other proceeding in respect of any Deposited Securities or
this
ADR; (d) in the
case
of the Company and its agents hereunder be under no obligation to appear in,
prosecute or
defend
any action, suit or other proceeding in respect of any Deposited Securities
or
this ADR,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to
it
against all expense (including fees and disbursements of counsel) and liability
be furnished as
often
as may be required; or (e) not be liable for any action or inaction by it in
reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit,
any Holder, or any other person believed by it to be competent to give such
advice or information.
The Depositary, its agents and the Company may rely and shall be protected
in
acting
upon any written notice, request, direction or other document believed by them
to be genuine
and to have been signed or presented by the proper party or parties. The
Depositary and its
agents will not be responsible for any failure to carry out any instructions
to
vote any of the Deposited
Securities, for the manner in which any such vote is cast or for the effect
of
any such vote.
The
Depositary may rely upon instructions from the Company or its Brazilian counsel
in respect
of any approval or license of the Brazilian government or any agency thereof
required for
any
currency conversion, transfer or distribution. The Depositary and its agents
may
own and deal
in
any class of securities of the Company and its affiliates and in ADRs.
Notwithstanding anything
to the contrary set forth in the Deposit Agreement or an ADR, the Depositary
and
its agents
may fully respond to any and all demands or requests for information maintained
by or on
its
behalf in connection with the Deposit Agreement, any Holder or Holders, any
ADR
or ADRs
or
otherwise related hereto to the extent such information is requested or required
by or pursuant
to any lawful authority, including without limitation laws, rules, regulations,
administrative
or judicial process, banking, securities or other regulators. The Company has
agreed
to
indemnify the Depositary and its agents under certain circumstances and the
Depositary
has agreed to indemnify the Company under certain circumstances. Neither the
Company
nor the Depositary nor any of their respective agents shall be liable to Holders
or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision
hereof.
(16)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as
Depositary by 60 days prior written notice of its election to do so delivered
to
the Company, or
be
removed as Depositary by the Company by 60 days prior written notice of such
removal delivered
to the Depositary. The Depositary may appoint substitute or additional
Custodians and
the
term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(17)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit
Agreement may be amended by the Company and the Depositary, provided
that any
amendment
that imposes or increases any fees or charges (other than stock transfer or
other taxes
and
other governmental charges, transfer or registration fees, cable, telex or
facsimile transmission
costs, delivery costs or other such expenses), or that shall otherwise prejudice
any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment
shall have been given to the Holders. Every Holder of an ADR at the time any
amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold
such
ADR, to consent and agree to such amendment and to be bound by the Deposit
Agreement
as amended thereby. In no event shall any amendment impair the right of the
Holder of
any
ADR to surrender such ADR and receive the Deposited Securities represented
thereby, except
in
order to comply with mandatory provisions of applicable law. Any amendments
or
supplements
which (i) are reasonably necessary (as agreed by the Company and the Depositary)
in
order
for (a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or (b) the
ADSs
or 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 prejudice
any substantial rights of Holders. Notwithstanding the foregoing, if any
governmental
body or regulatory body should adopt new laws, rules or regulations which would
require
amendment or supplement of the Deposit Agreement or the form of ADR to ensure
compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement
and the ADR 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.
(18)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit
Agreement, the Depositary may, and shall at the written direction of the
Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders
at least 30 days prior to the date fixed in such notice for such termination,
which 30 days
shall not act to reduce the 60 days referred to in paragraph (16) above. After
the date so fixed
for
termination, the Depositary and its agents will perform no further acts under
the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions
on
Deposited
Securities and deliver Deposited Securities being withdrawn. As soon as
practicable after
the
expiration of six months from the date so fixed for termination, the Depositary
shall sell
the
Deposited Securities and shall thereafter (as long as it may lawfully do so)
hold in a segregated
account the net proceeds of such sales, together with any other cash then held
by it under
the
Deposit Agreement, without liability for interest, in trust for the pro rata
benefit
of the Holders
of ADRs not theretofore surrendered. After making such sale, the Depositary
shall be discharged from all obligations in respect of the Deposit Agreement
and
this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company
shall be discharged from all obligations under the Deposit Agreement except
for
its obligations
to the Depositary and its agents.
(19)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and
conditions
of the Deposit Agreement shall be deemed for all purposes to (a) be a party
to
and bound
by
the terms of the Deposit Agreement and the applicable ADR(s), 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 the Deposit Agreement and the applicable ADR(s), 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 the
Deposit Agreement and the applicable ADR(s), the taking of such actions to
be
the conclusive
determinant of the necessity and appropriateness thereof.
A-8
