Exhibit 1
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SUZANO BAHIA SUL PAPEL E CELULOSE S.A.
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of November 1, 1993
Amended and Restated as of ___________, 2004
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of November 1, 1993, as amended and restated as
of ________, 2004, among SUZANO BAHIA SUL PAPEL E CELULOSE S.A., a company
incorporated under the laws of Brazil (herein called the Issuer), THE BANK OF
NEW YORK, a New York banking corporation (herein called the Depositary), and all
Owners (as hereinafter defined) and holders from time to time of American
Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent three
Shares, until there shall occur a distribution upon Deposited Securities covered
by Section 4.03 or a change in Deposited Securities covered by Section 4.08 with
respect to which additional Receipts are not executed and delivered, and
thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities specified in such Sections.
SECTION 1.02. Brazil.
The term "Brazil" shall mean the Federative Republic of Brazil.
SECTION 1.03. Central Bank.
The term "Central Bank" shall mean the Banco Central do Brasil or any
successor governmental agency in Brazil.
SECTION 1.04. Business Day.
The term "Business Day" shall mean any day in which both the banks
in Brazil and the banks in New York, New York are open for business.
SECTION 1.05. Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.06. Custodian.
The term "Custodian" shall mean the Principal Sao Paulo, Brazil,
office of Banco Itau, S.A., as agent of the Depositary for the purposes of this
Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.05, as substitute
custodian hereunder, as the context shall require.
SECTION 1.07. Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.08. Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000. If the address of the Corporate Trust Office
changes after the date of this
Deposit Agreement, notice shall be given 30 days prior to such change by the
Depositary to the Issuer of such new address. During such 30 day notification
period, the Issuer shall send all communications to the Depositary's previous
address.
SECTION 1.09. Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.05.
SECTION 1.10. Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.11. Foreign Currency.
The term "Foreign Currency" shall mean currency other than Dollars.
SECTION 1.12. Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares of the Issuer or any
successor as registrar for the Shares of the Issuer and any other appointed
agent of the Issuer for the transfer and registration of Shares.
SECTION 1.13. Issuer.
The term "Issuer" shall mean Suzano Bahia Sul Papel e Celulose S.A.,
a company incorporated under the laws of Brazil, and its successors.
SECTION 1.14. Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.15. Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares.
SECTION 1.16. Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided and
shall include any co-registrar appointed by the Depositary after consultation
with the Issuer.
SECTION 1.17. Restricted Receipts.
The term "Restricted Receipts" shall mean any Receipts issued
pursuant to Section 4.04 hereunder in connection with the issuance of rights by
the Issuer as set forth in such Section. Any such Restricted Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and transfer under such
laws.
SECTION 1.18. Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.19. Shares.
The term "Shares" shall mean Preferred Shares (acoes preferenciais)
of the Issuer heretofore validly issued and outstanding and fully paid or
hereafter validly issued and outstanding and fully paid; provided, however, that
if there shall occur any change in nominal value, a split-up or consolidation or
any other reclassification or, upon the occurrence of an event described in
Section 4.08, an exchange or conversion in respect of the Shares, the term
"Shares" shall thereafter represent the successor securities resulting from such
change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion. Reference to Shares shall
include evidence of rights to receive Shares; provided that in no event shall
the term "Shares" include evidence of rights to receive Shares with respect to
which the full purchase price has not been paid.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.
SECTION 2.01. Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by a proper instrument or
instruments of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that the Issuer
and the Depositary, notwithstanding any notice to the contrary, may treat the
Owner thereof as the absolute owner thereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in this Deposit Agreement, and for all other purposes, and
neither the Depositary nor the Issuer shall have any obligation or be subject to
any liability under this Deposit Agreement to any holder of a Receipt unless
such holder is the Owner thereof.
SECTION 2.02. Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to the
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer, or endorsement, in form reasonably satisfactory to the Custodian,
together with all such certifications as may be required from the individual
depositing the underlying Shares or any governmental agency, stock exchange,
etc., by the Depositary or the Custodian in accordance with the provisions of
this Deposit Agreement, and, if the Depositary requires, together with a written
order directing the Depositary to execute and deliver to, or upon the written
order of, the person or persons stated in such order, a Receipt or Receipts for
the number of American Depositary Shares representing such deposit. No Share
shall be accepted for deposit unless accompanied by evidence, if any is required
by the Depositary, that is reasonably satisfactory to the Depositary that all
conditions to such deposit have been satisfied by the person depositing such
Shares under Brazilian laws and regulations and any necessary approval has been
granted by any governmental body in Brazil, if any, which is then performing the
function of the regulation of currency exchange. If required by the Depositary,
Shares presented for deposit at any time, whether or not the transfer books of
the Issuer or the Foreign Registrar, if applicable, are closed, shall also be
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, which will provide for the prompt transfer to the Custodian of
any dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates or evidence of ownership of title to shares to be deposited,
together with the other instruments herein specified, for the purpose of
forwarding such Shares to the Custodian for deposit hereunder.
Upon each delivery to the Custodian of a certificate or certificates
or evidence of ownership and title to Shares to be deposited hereunder, together
with the other documents above specified, the Custodian shall, as soon as
transfer and recordation can be accomplished, present such certificate or
certificates or evidence of ownership and title to the Issuer or the Foreign
Registrar, if applicable, for transfer and recordation of the Shares being
deposited in the name of the Depositary or its nominee or the Custodian or its
nominee.
Deposited Securities shall be held by the Depositary or by the
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
SECTION 2.03. Execution and Delivery of Receipts.
Upon receipt by the Custodian of any deposit pursuant to Section
2.02 hereunder (and in addition, if the transfer books of the Issuer or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Issuer
that any Deposited Securities have been recorded upon the books of the Issuer or
the Foreign Registrar, if applicable, in the name of the Depositary or its
nominee or the Custodian or its nominee), together with the other documents
required as above specified, the Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written order a Receipt
or Receipts are deliverable in respect thereof and the number of American
Depositary Shares to be evidenced thereby. Such notification shall be made by
letter or, at the request, risk and expense of the person making the deposit, by
cable, telex or facsimile transmission. Upon receiving such notice from the
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Corporate Trust Office, to or upon the order of the person or
persons named in the notice delivered to the Depositary, a Receipt or Receipts,
registered in the name or names and evidencing any authorized number of American
Depositary Shares requested by such person or persons, but only upon payment to
the Depositary of the fees of the Depositary for the execution and delivery of
such Receipt or Receipts as provided in Section 5.09, and of all taxes and
governmental charges and fees payable in connection with such deposit and the
transfer of the Deposited Securities.
SECTION 2.04. Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement including payment of the fees of the Depositary as provided in Section
5.09, shall, without unreasonable delay, register transfers of Receipts on its
transfer books from time to time, upon any surrender of a Receipt, by the Owner
in person or by a duly authorized attorney, properly endorsed or accompanied by
a proper instrument or instruments of transfer, and duly stamped as may be
required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto but only
upon payment to the Depositary of the fees of the Depositary as provided in
Section 5.09.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
The Depositary may, after consultation with the Issuer, appoint one
or more co-transfer agents for the purpose of effecting transfers, combinations
and split-ups of Receipts at designated transfer offices on behalf of the
Depositary. Each co-transfer agent appointed under this Section 2.04 shall give
notice in writing to the Issuer and the Depositary accepting such appointment
and agreeing to be bound by the applicable terms of this Deposit Agreement. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by Owners
or persons entitled to Receipts and will be entitled to protection and indemnity
to the same extent as the Depositary.
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.09 and payment of all taxes and governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject to
the terms and conditions of this Deposit Agreement, the Owner of such Receipt
shall be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities or evidence of ownership of and title to such Deposit and
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities or evidence of ownership
of and title to such Deposit and Securities may be made by the delivery of (a)
certificates in the name of such Owner or as ordered by him or certificates
properly endorsed or accompanied by a proper instrument or instruments of
transfer to such Owner or as ordered by him or proper instruments of Transfer
and (b) any other securities, property and cash to which such Owner is then
entitled in respect of such Receipts to such Owner or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by a proper
instrument or instruments of transfer in blank, and if the Depositary so
requires, the Owner thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited Securities being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon the Depositary shall direct the Custodian to
deliver at the Sao Paulo, office of the Custodian, subject to Sections 2.06,
3.01 and 3.02 and to the other terms and conditions of this Deposit Agreement,
to or upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, except that the Depositary may
make delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates or such documents evidencing ownership
of and title to such Deposited Securities and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or, at the
request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
SECTION 2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the Custodian or Registrar may require
payment from the depositor of Shares or the presentor of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge or fee with respect to the Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature and
may also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, Section 7.07.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Issuer or the Foreign Registrar, if
applicable, are closed, or if any such action is deemed necessary or advisable
by the Depositary or the Issuer at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or for any other reason, subject
to Section 7.07 of this Deposit Agreement. Notwithstanding any other provision
of this Deposit Agreement or the Receipts, the surrender of outstanding Receipts
and withdrawal of Deposited Securities may be suspended only for (i) temporary
delays caused by closing the transfer books of the Depositary or the Issuer or
the deposit of Shares in connection with voting at a shareholders' meeting, or
the payment of dividends,
(ii) the payment of fees, taxes and similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental regulations relating to the Receipts or
to the withdrawal of the Deposited Securities. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any Shares required to be registered under the provisions of
the Securities Act of 1933, unless a registration statement is in effect as to
such Shares or such registration is not required. For purposes of the foregoing
sentence the Depositary shall be entitled to rely upon representations and
warranties deemed made pursuant to Section 3.03 of this Deposit Agreement and
shall not be required to make any further investigation.
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen Receipts.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09. Pre-Release of Receipts.
In its capacity as Depositary, the Depositary will lend neither the
Shares held hereunder nor the Receipts; provided, however, that the Depositary
reserves the right to (i) execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.02 and (ii) deliver Shares prior to the receipt and
cancellation of Receipts pursuant to Section 2.05, including Receipts which were
issued under (i) above but for which Shares may not have been received. The
Depositary may receive Receipts in lieu of Shares under (i) above and receive
Shares in lieu of Receipts under (ii) above. Each such transaction will be (a)
preceded or accompanied by a written representation from the person to whom
Receipts or Shares are to be delivered that such person, or its customer, owns
the Shares or Receipts to be remitted, as the case may be, (b) at all times
fully collateralized with cash 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 limit the number of
Receipts and Shares involved in
such transactions at any one time to thirty percent (30%) of the American
Depositary Shares outstanding (without giving effect to American Depositary
Shares evidenced by Receipts outstanding under (i) above), or Shares held
hereunder, respectively; provided, however, that the Depositary reserves the
right to change or disregard such limit from time to time as it deems
appropriate. The Depositary will also set limits with respect to the number of
Receipts and Shares involved in transactions to be done hereunder 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 connection with the foregoing.
SECTION 2.10. Maintenance of Records.
The Depositary agrees to maintain records of all Receipts
surrendered and Deposited Securities withdrawn under Section 2.05, substitute
Receipts delivered under Section 2.07, and cancelled or destroyed Receipts under
Section 2.08, in keeping with procedures ordinarily followed by stock transfer
agents located in The City of New York.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner of a Receipt
may be required from time to time to file with the Depositary or the Custodian
such proof of citizenship or residence, exchange control approval, proof of the
identity of any person legally or beneficially interested in the Receipt and the
nature of such interest or such information relating to the registration on the
books of the Issuer or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Depositary
or the Issuer may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. Upon the
request of the Issuer, the Depositary shall provide the Issuer with copies of
all such certificates and such written representations and warranties provided
to the Depositary under this Section 3.01. The Issuer may from time to time
request Owners to provide information as to the capacity in which such Owners
own or owned Receipts and regarding the identity of any other persons then or
previously interested in such Receipts and the nature of such interest and
various other matters. Each Owner agrees to provide any information requested by
the Issuer or the Depositary pursuant to this paragraph.
SECTION 3.02. Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Owner of such
Receipt to the Depositary. The Depositary may refuse to effect any transfer of
such Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by such Receipt until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Owner thereof any part or all of the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner of such Receipt shall remain
liable for any deficiency.
SECTION 3.03. Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor are validly issued, fully paid and not subject to any claim in respect
of pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized to do so. Every such person shall also be
deemed to represent that the deposit of such Shares or sale of Receipts
evidencing American Depositary Shares representing such Shares by that person is
not restricted under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of such Shares and issuance of Receipts.
SECTION 3.04. Information Requests.
The Issuer may from time to time request Owners of Receipts to
provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any other persons then or previously
interested in such Receipts as to the nature of such interest and various other
matters. The Depositary agrees to use reasonable efforts to comply with written
instructions received from the Issuer requesting that the Depositary forward any
such requests to the Owner and to forward to the Issuer any responses to such
requests received by the Depositary.
Each of the Depositary and the Issuer hereby confirms to the other
that for as long as the Deposit Agreement is in effect, it shall furnish the CVM
and the Central Bank, at any time and within the period that may be determined,
with any information and documents related to the American Depositary Receipt
program and the Receipts issued hereunder. In the event that the Depositary or
the Custodian shall be advised in writing by reputable independent Brazilian
counsel that the Depositary or the Custodian reasonably could be subject to
criminal, or material, as reasonably determined by the Depositary, civil,
liabilities as a result of the Issuer having failed to provide such information
or documents reasonably available only through the Issuer, the Depositary shall
have the right to terminate this Deposit Agreement, upon at least 15 days' prior
notice to the Owners and the Issuer, and the Depositary shall not be subject to
any liability hereunder on account of such termination or such determination.
The effect of any such termination of this Deposit Agreement shall be as
provided in Section 6.2
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.01. Cash Distributions.
Whenever the Depositary or the Custodian shall receive any cash
dividend or other cash distribution on any Deposited Securities, the Depositary
or the Custodian shall convert or cause to be converted within one Business Day
of it or the Custodian's receipt of such dividend or other cash distribution, in
accordance with applicable law, subject to the provisions of Section 4.05, and
either the Depositary or the Custodian shall as promptly as practicable
distribute the amount thus received (net of the fees of the Depositary as
provided in Section 5.09) by check drawn on a bank in The City of New York, to
the Depositary which shall distribute such amounts to the Owners entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively; provided, however, that in
the event that the Issuer or the Depositary shall be required to withhold and
does withhold from such cash dividend or such other cash distribution an amount
on account of taxes or other
governmental charges, the amount distributed to the Owner of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Owners entitled thereto. The Issuer or its agent will
remit to the appropriate governmental agency in Brazil all amounts withheld and
owing to such agency. The Depositary will forward to the Issuer or its agent
such information from its records as the Issuer may reasonably request to enable
the Issuer or its agent to file necessary reports with governmental agencies,
and the Depositary or the Issuer or its agent may file any such reports
necessary to obtain benefits under the applicable tax treaties for the Owners of
Receipts.
SECTION 4.02. Distributions other than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by it or the Custodian to be distributed to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Issuer or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners or holders) the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees of the Depositary as
provided in Section 5.09) shall be distributed by the Depositary to the Owners
entitled thereto as in the case of a distribution received in cash, provided
that any unsold balance of such securities or property may be distributed by the
Depositary to the Owners entitled thereto in accordance with such equitable and
practicable method as the Depositary shall have adopted.
SECTION 4.03. Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Issuer shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees of
the Depositary as provided in Section 5.09. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.01. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04. Rights.
In the event that the Issuer shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Issuer, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse; provided, however, if at the time of the offering of
any rights the Depositary determines in its discretion, after consultation with
the Issuer, that it is lawful and feasible to make such rights available to all
Owners or to certain Owners but not to other Owners, the Depositary, after
consultation with the Issuer, may distribute to any Owner to whom it determines
the distribution to be lawful and feasible, in proportion to the number of
American Depositary Shares held by such Owner, warrants or other instruments
therefor in such form as it deems appropriate. If the Depositary determines in
its discretion, after consultation with the Issuer, that it is not lawful and
feasible to make such rights available to certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees of the Depositary as provided in Section 5.09 and
all taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of this Deposit Agreement) for the account
of such Owners otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of
any Receipt or otherwise. The Depositary shall not be responsible for any
failure to determine that it may be lawful or feasible to make such rights
available to Owners in general or any Owner in particular.
If an Owner of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the American
Depositary Shares of such Owner hereunder, the Depositary will make such rights
available to such Owner upon written notice from the Issuer to the Depositary
that (a) the Issuer has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Issuer has
determined in its sole discretion are required under applicable law. Upon
instruction pursuant to such warrants or other instruments to the Depositary
from such Owner to exercise such rights, upon payment by such Owner to the
Depositary for the account of such Owner of an amount equal to the purchase
price of the Shares to be received upon the exercise of the rights, and upon
payment of the fees of the Depositary as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Issuer shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver to such Owner Restricted Receipts.
If registration under the Securities Act of 1933 of the securities
to which any rights relate is required in order for the Issuer to offer such
rights to Owners and sell the securities upon the exercise of such rights to
Owners, the Depositary will not offer such rights to the Owners unless and until
such a registration statement is in effect, or unless the offering and sale of
such securities to the Owners of such Receipts are exempt from registration
under the provisions of such Act.
SECTION 4.05. Conversion of Foreign Currency.
Whenever the depositary or the Custodian shall receive Foreign
Currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights in respect of such Receipts, and if
at the time of the receipt thereof the Foreign Currency so received can,
pursuant to applicable law, be converted into Dollars, the Depositary shall
convert or cause to be converted within one Business Day of its or the
Custodian's receipt of such Foreign Currency, by sale or in any other manner
that it may determine in accordance with applicable law, such Foreign Currency
into Dollars. If at the time of conversion of such Foreign Currency into Dollars
such Dollars can, pursuant to applicable law, be transferred outside of Brazil
for distribution to the owners entitled thereto, such Dollars shall be
distributed as promptly as practicable to the Owners entitled thereto or, if the
Depositary shall have distributed any rights, warrants or other instruments
which entitle the holders thereof to such Dollars, then to the holders of such
rights, warrants and/or instruments upon surrender thereof for cancellation.
Such distribution or conversion may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09.
If conversion of Foreign Currency into Dollars or distribution of
Dollars or non-convertible Foreign Currency can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file as promptly as practicable such application for approval or license;
however, 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.
If at any time Foreign Currency received by the Depositary or the
Custodian is not, pursuant to applicable law, convertible, in whole or in part,
into Dollars transferable to United States, or if any approval or license of any
government or agency thereof which is required for such conversion is denied or
in the opinion of the Depositary can not be promptly obtained, the Depositary
shall, (a) as to that portion of the Foreign Currency that is convertible into
Dollars, make such conversion and (i) if permitted pursuant to applicable law,
transfer such Dollars to the United States and distribute to Owners in
accordance with the first paragraph of this Section 4.05 or (ii) to the extent
transfer of such Dollars to the United States is not permitted pursuant to
applicable law, hold such Dollars as may not be transferred for the benefit of
the Owners entitled thereto, and (b) as the non-convertible balance, if any, (i)
if requested in writing by an Owner, distribute or cause the Custodian to
distribute the Foreign Currency (or an appropriate document evidencing the right
to receive such Foreign Currency) received by the Depositary or the Custodian to
such Owner and, (ii) the Depositary shall hold or shall cause the Custodian to
hold any amounts of nonconvertible Foreign Currency not distributed pursuant to
the immediately preceding subclause (b)(i) uninvested and without liability for
interest thereon for the respective accounts of the Owners entitled to receive
the same.
SECTION 4.06. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date, after consultation with the
Issuer if such record date is different from the record date applicable to the
Deposited Securities, (a) for the determination of the Owners who shall be (i)
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof or (ii) entitled to give instructions for the exercise of
voting rights at any such meeting, or (b) on or after which each American
Depositary Share will represent the changed number of Shares. Subject to the
provisions of Sections 4.01 through 4.05 and to the other terms and conditions
of this Deposit Agreement, the Owners on such record date shall be entitled, as
the case may be, to receive the amount distributable by the Depositary with
respect to such dividend or other distribution or such rights or the net
proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions, to
exercise the rights of Owners hereunder with respect to such changed number of
Shares and to act in respect of any other such matter.
SECTION 4.07. Voting of Deposited Securities.
As of the date of this Deposit Agreement, the Shares do not give the
holders thereof any voting rights, except in certain limited circumstances. If
in the future the terms of the Shares should be revised or amended to provide
for voting rights, or should such Shares otherwise obtain any voting rights,
then, upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Issuer, the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be subject to the reasonable discretion of the Depositary,
which shall contain (a) such information as is contained in such notice of
meeting received by the Depositary from the Issuer, (b) a statement that the
Owners as of the close of business on a specified record date will be entitled,
subject to any applicable provision of Brazilian law and of the By-laws
(Estatuto Social) of the Issuer and the provisions of the Deposited Securities,
to instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the amount of Shares or other Deposited Securities represented by
their respective American Depositary Shares and (c) a statement as to the manner
in which such instructions may be given, including, when applicable, an express
indication that instructions may be given (or, if applicable, deemed given in
accordance with the second paragraph of this Section 4.07 if no instruction is
received) to the Depositary to give a discretionary proxy to a person designated
by the Issuer. Upon the written request of an Owner on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor, insofar as practicable and permitted under
applicable laws and the provisions of the By-laws (Estatuto Social) of the
Issuer and the provisions of the Deposited Securities, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with any
non-discretionary instructions set forth in such request, including their
instruction to give a discretionary proxy to a person designated by the Issuer.
The Depositary shall not, and the Depositary shall ensure that the Custodian or
any of its nominees shall not, exercise any voting discretion over any Deposited
Securities.
If after complying with the procedures set forth in this Section the
Depositary does not receive instructions from the Owner of a Receipt on or
before the date established by the Depositary for such purpose, the Depositary
shall give a discretionary proxy for the Shares evidenced by such Receipt to a
person designated by the Issuer.
SECTION 4.08. Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary or the Custodian in exchange for or in conversion of
or in respect of Deposited Securities, shall be treated as new Deposited
Securities under this Deposit Agreement, and American Depositary Shares shall
thenceforth represent the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may, after consultation with the
Issuer, and shall, if the Issuer shall so request, execute and deliver
additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
SECTION 4.09. Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary or the Custodian or the nominee of either as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Issuer. The Depositary shall also send to the Owners
copies of such reports when furnished by the Issuer pursuant to Section 5.06.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Issuer shall be furnished in
English.
In addition, upon notice that the Issuer has not furnished the
Commission, NASDAQ or any other relevant stock exchange, with any public
reports, documents or other information as required by foreign law or otherwise
under Rule 12g3-2(b) under the Securities Exchange Act of 1934, as from time to
time amended, the Depositary shall furnish promptly to the Commission, NASDAQ or
any other relevant stock exchange, copies of all annual or other periodic
reports and other notices or communications which the Depositary receives as
holder of the Deposited Securities from the Issuer and which are not so
furnished to or filed with the Commission, NASDAQ or any other relevant stock
exchange, pursuant to any other requirement of the Commission, NASDAQ or any
other relevant stock exchange, and the Depositary is hereby authorized by the
Issuer so to do on its behalf.
SECTION 4.10. Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall, at the
expense of the Issuer, furnish to it a list, as of the most recent practicable
date, of the names, addresses and holdings of American Depositary Shares by all
persons in whose names Receipts are registered on the books of the Depositary.
SECTION 4.11. Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively, and the Depositary shall distribute any unsold balance of such
property in accordance with the provisions of this Deposit Agreement. The Issuer
or its agent shall remit to appropriate governmental authorities and agencies in
Brazil all amounts, if any, withheld and owing to such authorities and agencies
by the Issuer. The Depositary or its agent shall remit to appropriate
governmental authorities and agencies in the United States all amounts, if any,
withheld and owing to such authorities and agencies by the Depositary.
The Depositary shall forward to the Issuer or its agent such
information from its records as the Issuer may reasonably request to enable the
Issuer or its agent to file necessary reports with governmental agencies. The
Depositary shall use reasonable efforts to make and maintain arrangements
enabling Owners who are citizens or residents of the United States to receive
any tax credits or other benefits (pursuant to treaty or otherwise) relating to
dividend payments on the American Depositary Shares.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE ISSUER.
SECTION 5.01. Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners, provided that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Issuer or a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder or at the written request of the Issuer.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, after
consultation with the Issuer, the Depositary shall act as Registrar or appoint a
Registrar or one or more co-registrars for registry of such Receipts in
accordance with any requirements of such exchange or exchanges. Such Registrar
or co-registrars shall be removed only after consultation with the Issuer. Each
Registrar and co-registrar appointed under this Section 5.01 shall give notice
in writing to the Issuer and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
The Issuer shall have the right, at all reasonable times, to inspect
transfer and registration records of the Depositary, the Registrar and any
co-transfer agents or co-registrars and to require such parties to supply copies
of such portions of their records as the Issuer may request.
SECTION 5.02. Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer nor any of their directors,
employees, agents or affiliates shall incur any liability to any Owner or holder
of any Receipt, if by reason of any provision of any present or future law or
regulation of the United States, Brazil or any other country, or of any
governmental or regulatory authority or stock exchange, including NASDAQ, or by
reason of any provision, present or future, of the By-laws (Estatuto Social) of
the Issuer, or by reason of any provision of any securities issued or
distributed by the Issuer, or any offering or distribution thereof, or by reason
of any act of God or war or other circumstances beyond its control, the
Depositary or the Issuer or any of their directors, employees, agents or
affiliates shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement it is provided shall be done or
performed; nor shall the Depositary or the Issuer incur any liability to any
Owner or holder of any Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a distribution pursuant to
Sections 4.01, 4.02, or 4.03 of this Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of this Deposit Agreement, because of
applicable law, or for any other reason such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.03. Obligations of the Depositary, the Custodian and the Issuer.
The Issuer assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement or the Receipts to Owners or holders of
Receipts, except that it agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence and to act in good faith in
the performance of such duties.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement or the Receipts to any Owner or holder of
any Receipt (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that it agrees to perform
its obligations specifically set forth in this Deposit Agreement without
negligence and to act in good faith in the performance of such duties.
Neither the Depositary nor the Issuer shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Issuer shall be liable for any action
or nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information including, but not limited to, any such action or nonaction based
upon any written notice, request, direction or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary and the Issuer may rely and shall be protected in
acting upon any written notice, request, direction or other documents believed
by them to be genuine and to have been signed or presented by the proper party
or parties.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04. Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Issuer effective upon
the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided.
The Depositary may at any time be removed by the Issuer by written
notice of such removal effective upon the appointment of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Issuer shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer, shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05. The Custodian.
The Custodian or its successor shall be subject at all times and in
all respects to the directions of the Depositary and shall be responsible solely
to it. The Custodian may resign and be discharged from its duties hereunder by
written notice of such resignation delivered to the Depositary at least 60 days
prior to the date on which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, and after consultation with the Issuer,
appoint a substitute custodian, which shall thereafter be the Custodian
hereunder. The Depositary may discharge the Custodian any time upon notice to
the Custodian being discharged. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint a substitute custodian, which shall thereafter be the Custodian
hereunder. Upon demand of the Depositary, the Custodian shall deliver such of
the Deposited Securities or evidence of ownership and title of the Deposited
Securities held by it as are requested of it to the substitute custodian. The
substitute custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary. The Depositary agrees with the Issuer that at no
time shall there be more than one Custodian acting in connection with this
Deposit Agreement.
Upon the appointment of any successor depositary hereunder, the
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of the
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of the Custodian, execute and deliver to
the Custodian all such instruments as may be proper to give to the Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06. Notices and Reports.
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Issuer agrees to transmit to the Depositary and the Custodian a copy
of the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities.
The Issuer will arrange for the translation into English and the
prompt transmittal by the Issuer to the Depositary and the Custodian of such
notices and any other reports and communications which are made generally
available by the Issuer to holders of its Shares. If requested in writing by the
Issuer, the Depositary will arrange for the mailing, at the Issuer's expense, of
copies of such notices, reports and
communications to all Owners. The Issuer will timely provide the Depositary with
the quantity of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION 5.07. Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for any
such securities (each a "Distribution"), the Issuer will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires a registration statement under the Securities Act of 1933
to be in effect prior to making such Distribution available to Owners entitled
thereto. If in the opinion of such counsel a registration statement under the
Securities Act of 1933 is required, such counsel shall furnish to the Depositary
a written opinion as to whether or not there is a registration statement in
effect which will cover such Distribution.
In the event that such registration under the Securities Act of 1933
would be required in connection with any such Distribution, the Issuer shall
have no obligation to effect such registration.
In the event of any issuance of additional securities, the Issuer
shall have no obligation to register such additional securities under the
Securities Act of 1933 and, to the extent the Issuer in its discretion deems it
necessary or advisable in order to avoid any requirement to register such
additional securities under the Securities Act of 1933, may prevent Owners in
the United States from purchasing any such additional securities (whether
pursuant to pre-emptive rights or otherwise) and direct the Depositary not to
accept any Shares for deposit for such period of time following the issuance of
such additional securities and to adopt such other specific measures as the
Issuer may reasonably request in writing.
The Issuer agrees with the Depositary that neither the Issuer nor
any company controlled by, controlling or under common control with the Issuer
will at any time deposit any Shares, either originally issued or previously
issued and reacquired by the Issuer or by any company under its control, unless
a registration statement is in effect as to such Shares under the Securities Act
of 1933. The Depositary will comply with the written instructions of the Issuer
not to accept knowingly for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may be specified in
such instructions in order to facilitate the Issuer's compliance with the
securities laws of the United States.
SECTION 5.08. Indemnification.
The Issuer agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and the Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of acts performed
or omitted, in accordance with the provisions of this Deposit Agreement and of
the Receipts, as the same may be amended, modified or supplemented from time to
time, (i) by either the Depositary or the Custodian or their respective
directors, employees, agents and affiliates, except for any liability or expense
arising out of the negligence of any of them or the failure of any of them to
act in good faith, or (ii) by the Issuer or any of its directors, employees,
agents and affiliates.
The Issuer shall not indemnify the Depositary or the Custodian
against any liability or expense arising out of information relating to the
Depositary or the Custodian, as the case may be, furnished in writing to the
Issuer and executed by the Depositary or the Custodian expressly for the use in
any registration statement, prospectus (or placement memorandum) or preliminary
prospectus (or preliminary placement memorandum) relating to the Shares
evidenced by the American Depositary Shares.
The Depositary agrees to indemnify the Issuer, its directors,
employees, agents and affiliates against and hold each of them harmless from,
any liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or the Custodian or their respective directors, employees, agents and
affiliates due to their negligence or failure to act in good faith.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of a commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement and
shall consult in good faith with the indemnifying person as to the conduct of
the defense of such action or claim, which defense shall be reasonable under the
circumstances. No indemnified person shall compromise or settle any action or
claim without the consent of the indemnifying person.
SECTION 5.09. Charges of Depositary.
The Issuer agrees to pay the fees and reasonable expenses of the
Depositary and those of any Registrar only in accordance with agreements in
writing entered into between the Depositary and the Issuer from time to time.
The Depositary shall present its statement for such charges and expenses to the
Issuer once every three
months. The charges and expenses of the Custodian are for the sole account of
the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 hereof), whichever applicable: (1) a fee not in excess of U.S.$5.00
per 100 American Depositary Shares (or portion thereof) for the execution and
delivery of Receipts pursuant to Section 2.03, the execution and delivery of
Receipts pursuant to Section 4.03, and the surrender of Receipts pursuant to
Section 2.05, (2) taxes and other governmental charges, (3) such registration
fees as may from time to time be in effect for the registration of transfers of
Shares generally on the Share register of the Issuer or Foreign Registrar and
applicable to transfers of Shares to the name of the Depositary or its nominee
or the Custodian or its nominee on the making of deposits or withdrawals
hereunder, (4) such cable, telex and facsimile transmission expenses as are
expressly provided in this Deposit Agreement, (5) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section
4.05, (6) a fee not in excess of U.S.$.02 per American Depositary Share (or
portion thereof) for any cash distribution made pursuant to the Deposit
Agreement including, but not limited to, Sections 4.01 through 4.04 hereof.
The Depositary, subject to Section 2.09 hereof, may own and deal in
any class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10. Retention of Depositary Documents.
Except as otherwise explicitly provided herein, the Depositary is
authorized to destroy those documents, records, bills and other data compiled
during the term of this Deposit Agreement at the times permitted by the laws or
regulations governing the Depositary unless the Issuer requests that such papers
be retained for a different period or turned over to the Issuer or to a
successor depositary.
SECTION 5.11. Exclusivity.
The Issuer agrees not to appoint any other depositary for issuance
of American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.01. Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Issuer and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase any fees or charges
(other than taxes and other governmental charges), or which shall otherwise
prejudice any substantial existing right of Owners, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Owner of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination.
The Depositary shall at any time at the direction of the Issuer
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Issuer and the
Owners of all Receipts then outstanding if at any time 60 days shall have
expired after the Depositary shall have delivered to the Issuer a written notice
of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.05, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell property and rights
as provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of this Deposit
Agreement, the Issuer shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary under Sections
5.08 and 5.09. The obligations of the Depositary under Section 5.08 shall
survive the termination of this Deposit Agreement.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.01. Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be retained by the Depositary and filed with the
Depositary and the Custodian and shall be open to inspection by any holder or
Owner of a Receipt at the Corporate Trust office of the Depositary and the
principal corporate office of the Custodian designated by the Custodian during
business hours.
SECTION 7.02. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.03. Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04. Holders and Owners as Parties; Binding Effect.
The holders and Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.05. Notices.
Any and all notices to be given to the Issuer shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by registered mail, addressed to Suzano Bahia
Sul Papel e Celulose S.A., Xxxxxxx Xxxxxxxxxx Xxxxx Xxxx 0000, 8(Degree) andar,
Sao Paulo, SP CEP 00000-000, Xxxxxx, Attention: Managing Officer, with a copy to
the Financial Officer, or any other place to which the Issuer may have
transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR
Administration, or any other place to which the Depositary may have transferred
its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is received. The Depositary or the Issuer may,
however, act upon any cable, telex or facsimile transmission received by it,
notwithstanding that such cable, telex or facsimile transmission shall not
subsequently be confirmed by letter as aforesaid.
SECTION 7.06. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York.
SECTION 7.07. Compliance With U.S. Securities Laws.
Notwithstanding any terms of this Deposit Agreement to the contrary,
the Issuer and the Depositary each agrees that it will not exercise any rights
it has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, Section I A(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
IN WITNESS WHEREOF, SUZANO BAHIA SUL PAPEL E CELULOSE S.A. and THE
BANK OF NEW YORK have duly executed this agreement as of the day and year first
set forth above and all Owners shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
SUZANO BAHIA SUL PAPEL E CELULOSE S.A.
By: __________________________________
Name:
Title:
THE BANK OF NEW YORK, as Depositary
By: __________________________________
Name:
Title:
EXHIBIT A
__________________________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents
three deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR PREFERRED SHARES (ACOES PREFERENCIAIS) WITHOUT PAR VALUE,
OF
SUZANO BAHIA SUL PAPEL E CELULOSE S.A.
(INCORPORATED UNDER THE LAWS OF BRAZIL)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that __________________________________________________, or
registered assigns IS THE OWNER OF ____________________________________
AMERICAN DEPOSITARY SHARES
representing deposited Preferred Shares (acoes preferenciais), without par value
(herein called "Shares"), of Suzano Bahia Sul Papel e Celulose S.A., a company
incorporated under the laws of Brazil (herein called the "Company"). At the date
hereof, each American Depositary Share represents three Shares deposited or
subject to deposit under the deposit agreement at the Sau Paulo, Brazil, office
of Banco Itau (herein called the "Custodian"). The Depositary's Corporate Trust
Office is located at a different address than its principal executive office.
Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
00000, and its principal executive office is located at Xxx Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of November 1, 1993, as amended and restated
as of _________, 2004 (herein called the "Deposit Agreement"), by and among the
Company, the Depositary, and all Owners and holders from time to time of
Receipts issued thereunder, each of whom by accepting a Receipt agrees to become
a party thereto and become bound by all the terms and conditions thereof. The
Deposit Agreement sets forth the rights of Owners and holders of the Receipts
and the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender of this Receipt at the Corporate Trust Office of the
Depositary, and upon payment of the fee of the Depositary provided in this
Receipt, and subject to the terms and conditions of the Deposit Agreement, the
Owner hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities or evidence of ownership of and title to such Deposited Securities at
the time represented by the American Depositary Shares for which this Receipt is
issued. Delivery of such Deposited Securities or evidence of ownership of and
title to such Deposited Securities may be made by the delivery of (a)
certificates in the name of the Owner hereof or as ordered by him or the
delivery of certificates properly endorsed or accompanied by a proper instrument
or instruments of transfer to such Owner or as ordered by him or proper
instruments of transfer and (b) any other securities, property and cash to which
such Owner is then entitled in respect of this Receipt. Such delivery will be
made at the option of the Owner hereof, either at the office of the Custodian or
at the Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities or such documents
evidencing ownership of and title to such Deposited Securities for such delivery
at the Corporate Trust Office of the Depositary shall be at the risk and expense
of the Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, without unreasonable delay, upon surrender of this Receipt
properly endorsed for transfer or accompanied by a proper instrument or
instruments of transfer and funds sufficient to pay any applicable transfer
taxes and the fees and expenses of the Depositary and upon compliance with such
regulations, if any, as the Depositary may establish for such purpose. This
Receipt may be split into other such Receipts, or may be combined with other
such Receipts into one Receipt, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination, or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, the Custodian, or Registrar may require payment from
the depositor of Shares or the presentor of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge or fee
with respect to the Shares being deposited or withdrawn) and payment of any
applicable fees as provided in the Deposit Agreement or this Receipt, may
require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with any
regulations the Depositary may establish consistent with the provisions of the
Deposit Agreement or this Receipt, including, without limitation, paragraph (22)
hereof.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Company or the Foreign Registrar, if
applicable, are closed, or if any such action is deemed necessary or advisable
by the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement or this Receipt, or for any other
reason, subject to paragraph (22) hereof. Notwithstanding any other provision of
the Deposit Agreement or the Receipts, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may be suspended only for (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting, or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
and (iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under the Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares or such registration is not required.
For purposes of the foregoing sentence the Depositary shall be entitled to rely
upon representations and warranties deemed made pursuant to Section 3.03 of the
Deposit Agreement and paragraph (5) hereof and shall not be required to make any
further investigation.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares hereunder and under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are validly issued, fully paid, and not subject to any
claim in respect of pre-emptive rights of the holders of outstanding Shares and
that the person making such deposit is duly authorized to do so. Every such
person shall also be deemed to represent that the deposit of Shares or sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person is not restricted under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of such Shares and issuance of
Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, proof of the
identity of any person legally or beneficially interested in the Receipt and the
nature of such interest or such information relating to the registration on the
books of the Company or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Depositary
or the Company may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of any Receipt or the distribution of any
dividend or sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made. Upon the request of the Company, the Depositary shall provide the Company
with copies of all such certificates and such written representations and
warranties provided to the Depositary under this Article 6 and Section 3.01 of
the Deposit Agreement. The Company may from time to time request Owners to
provide information as to the capacity in which such Owners own or owned
Receipts and regarding the identity of any
other persons then or previously interested in such Receipts and the nature of
such interest and various other matters. Each Owner agrees to provide any
information requested by the Company or the Depositary pursuant to this
paragraph. 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 that all conditions to such deposit have been satisfied by the
person depositing such Shares under Brazilian laws and regulations and any
necessary approval has been granted by any governmental body in Brazil, if any,
which is then performing the function of the regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees and reasonable expenses of the
Depositary and those of any Registrar only in accordance with agreements in
writing entered into between the Depositary and the Company from time to time.
The Depositary shall present its statement for such charges and expenses to the
Company once every three months. The charges and expenses of the Custodian are
for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), whichever applicable: (1) a fee not in
excess of U.S.$5.00 per 100 American Depositary Shares (or portion thereof) for
the execution and delivery of Receipts pursuant to Section 2.03 of the Deposit
Agreement, the execution and delivery of Receipts pursuant to Section 4.03 of
the Deposit Agreement, and the surrender of Receipts pursuant to Section 2.05 of
the Deposit Agreement, (2) taxes and other governmental charges, (3) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the Share register of the Company or Foreign
Registrar and applicable to transfers of Shares to the name of the Depositary or
its nominee or the Custodian or its nominee on the making of deposits or
withdrawals hereunder, (4) such cable, telex and facsimile transmission expenses
as are expressly provided in the Deposit Agreement, (5) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit Agreement, (6) a fee not in excess of U.S.$.02 or
less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement including, but not limited
to Sections 4.01 through 4.04 thereof.
The Depositary, subject to Paragraph (8) hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
In its capacity as Depositary, the Depositary will lend neither the Shares
held under the Deposit Agreement nor the Receipts; provided, however, that the
Depositary reserves the right to (i) execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.02 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt and cancellation of Receipts pursuant to
Section 2.05 of the Deposit Agreement, including Receipts which were issued
under (i) above but for which Shares may not have been received. The Depositary
may receive Receipts in lieu of Shares under (i) above and receive Shares in
lieu of Receipts under (ii) above. Each such transaction will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered that such person, or its customer, owns the Shares or
Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash 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 limit the number of
Receipts and Shares involved in such transactions at any one time to thirty
percent (30%) of the American Depositary Shares outstanding (without giving
effect to American Depositary Shares evidenced by Receipts outstanding under (i)
above), or Shares held under the Deposit Agreement, respectively; provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary will also set
limits with respect to the number of Receipts and Shares involved in
transactions to be done under the Deposit Agreement 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 connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt when properly endorsed or accompanied by a proper instrument or
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument, provided, however, that the Company and the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement or for all other purposes and neither the Depositary
nor the Company shall have any obligation or be subject to any liability under
the Deposit Agreement to any holder of a Receipt unless such holder is the Owner
thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by
the Depositary by the manual signature or facsimile of a duly authorized
signatory of the Depositary and if a Registrar for the Receipts shall have been
appointed, countersigned by the manual signature or facsimile of a duly
authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying by holders and Owners at the public reference facilities
maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000. Pursuant to such Rule, certain of such reports and documents will be
translated into or summarized in English.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary or the Custodian or the nominee of either as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also send to Owners of
Receipts copies of such reports when furnished by the Company pursuant to the
Deposit Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
translated into English.
The Depositary will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Company or a matter related to the
Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary or the Custodian receives any cash dividend or
other cash distribution on any Deposited Securities, the Depositary or the
Custodian will convert or cause to be converted within one Business Day of it or
the Custodian's receipt of such dividend or other cash distribution, in
accordance with applicable law, if at the time of receipt thereof any amounts
received in a foreign currency can in the judgment of the Depositary be
converted on a reasonable basis into United States dollars transferable to the
United States, and subject to the Deposit Agreement, such dividend or
distribution into Dollars and either the Depositary or the Custodian will as
promptly as practicable distribute the amount thus received (net of the fees of
the Depositary as provided in Section 5.09 of the Deposit Agreement) by check
drawn in a bank in the City of New York, to the Depositary which shall
distribute such amounts to the Owners of Receipts entitled thereto, provided,
however, that in the event that the Company 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 or other governmental charges, the amount distributed to the Owners of the
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will cause the securities or property received by it or the
Custodian to be distributed to the Owners of Receipts entitled thereto, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.09 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash,
provided that any unsold balance of such securities or property may be
distributed by the Depositary to the Owners entitled thereto in accordance with
such equitable and practicable method as the Depositary shall have adopted.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may and shall if the Company shall so request, distribute
to the Owners of outstanding Receipts entitled thereto, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees of the
Depositary as provided in Section 5.09 of the Deposit Agreement. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary will sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions set forth in the Deposit Agreement. If additional Receipts are
not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems
necessary and practicable to pay any such taxes or charges, and the Depositary
shall distribute the net proceeds of any such sale after deduction of such taxes
or charges to the Owners of Receipts entitled thereto and the Depositary shall
distribute any unsold balance of such property in accordance with the provisions
of the Deposit Agreement. The Company or its agent shall remit to appropriate
governmental authorities and agencies in Brazil all amounts, if any, withheld
and owing to such authorities and agencies by the Company. The Depositary or its
agent shall remit to appropriate governmental authorities and agencies in the
United States all amounts, if any, withheld and owing to such authorities and
agencies by the Depositary.
The Depositary shall forward to the Company or its agent such information
from its records as the Company may reasonably request to enable the Company or
its agent to file necessary reports with governmental agencies. The Depositary
shall use reasonable efforts to make and maintain arrangements enabling Owners
who are citizens or residents of the United States to receive any tax credits or
other benefits (pursuant to treaty or otherwise) relating to dividend payments
on the American Depositary Shares.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available in Dollars to such
Owners or, if by the terms of such rights offering or, for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse; provided, however, if at the time of
the offering of any rights the Depositary determines in its discretion, after
consultation with the Company, that it is lawful and feasible to make such
rights available to all Owners or to certain Owners but not to other Owners, the
Depositary, after consultation with the Company, may distribute, to any Owner to
whom it determines the distribution to be lawful and feasible, in proportion to
the number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate. If the Depositary
determines in its discretion, after consultation with the Company, that it is
not lawful and feasible to make such rights available to certain Owners, it may
sell the rights or warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees of the Depositary as provided in Section
5.09 of the Deposit Agreement) for the account of such Owners otherwise entitled
to such rights, warrants or other instruments, upon an averaged or other
practical basis without regard to any distinctions among such Owners because of
exchange restrictions or the date of delivery of any Receipt or otherwise. The
Depositary shall not be responsible for any failure to determine that it
may be lawful or feasible to make such rights available to Owners in general or
any Owner in particular.
If an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are required under applicable law. Upon
instruction pursuant to such warrants or other instruments to the Depositary
from such Owner to exercise such rights, upon payment by such Owner to the
Depositary for the account of such Owner of an amount equal to the purchase
price of the Shares to be received upon the exercise of the rights, and upon
payment of the fees of the Depositary as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, execute and deliver to such Owner Restricted Receipts.
If registration under the Securities Act of 1933 of the securities to
which any rights relate is required in order for the Company to offer such
rights to Owners and sell the securities upon the exercise of such rights, the
Depositary will not offer such rights to the Owners unless and until such a
registration statement is in effect, or unless the offering and sale of such
securities to the Owners of such Receipts are exempt from registration under the
provisions of such Act.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive Foreign Currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights in respect of such Receipts, and if at the time
of the receipt thereof the Foreign Currency so received can, pursuant to
applicable law, be converted into Dollars, the Depositary shall convert or cause
to be converted within one Business Day of its or the Custodian's receipt of
such Foreign Currency, by sale or in any other manner that it may determine in
accordance with applicable law, such Foreign Currency into Dollars. If at the
time of conversion of such Foreign Currency into Dollars can, pursuant to
applicable law, be transferred outside of Brazil for distribution to the owners
entitled thereto, such Dollars shall be distributed as promptly as practicable
to the Owners entitled thereto or, if the Depositary shall have distributed any
rights, warrants or other instruments which entitle the holders thereof to such
Dollars, then to the holders of such rights, warrants and/or instruments upon
surrender thereof for cancellation. Such distribution or conversion may be made
upon an averaged or other practicable basis
without regard to any distinctions among Owners on account of exchange
restrictions, the date of delivery of any Receipt or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09.
If conversion of Foreign Currency into Dollars or distribution of Dollars
or non-convertible Foreign Currency can be effected only with the approval or
license of any government or agency thereof, the Depositary shall file as
promptly as practicable such application for approval or license; however, 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.
If at any time Foreign Currency received by the Depositary or the
Custodian is not, pursuant to applicable law, convertible, in whole or in part,
into Dollars transferable to the United States, or if any approval or license of
any government or agency thereof which is required for such conversion is denied
or in the opinion of the Depositary can not be promptly obtained, the Depositary
shall, (a) as to that portion of the Foreign Currency that is convertible into
Dollars, make such conversion and (i) if permitted pursuant to applicable law,
transfer such Dollars to the United States and distribute to Owners in
accordance with the first paragraph of this Section 4.05 or (ii) to the extent
transfer of such Dollars to the United States is not permitted pursuant to
applicable law, hold such Dollars as may not be transferred for the benefit of
the Owners entitled thereto, and (b) as the non-convertible balance, if any, (i)
if requested in writing by an Owner, distribute or cause the Custodian to
distribute the Foreign Currency (or an appropriate document evidencing the right
to receive such Foreign Currency) received by the Depositary or the Custodian to
such Owner and, (ii) the Depositary shall hold or shall cause the Custodian to
hold any amounts of non-convertible Foreign Currency not distributed pursuant to
the immediately preceding subclause (b)(i) uninvested and without liability for
interest thereon for the respective accounts of the Owners entitled to receive
the same.
15. FIXING OF RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date, after consultation with the Company if such record date
is different from the record date applicable to the Deposited Securities, (a)
for the determination of the Owners of Receipts who shall be (i) entitled to
receive such dividend, distribution or rights or the net proceeds of the sale
thereof or (ii) entitled to give instructions for the exercise of voting rights
at any such meeting, or (b) on or after which each American Depositary Share
will represent the changed number of Shares, subject to the provisions of the
Deposit Agreement. The
Owners on such record date shall be entitled as the case may be, to receive the
amount distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds or sale thereof in proportion to
the number of American Depositary Shares held by them respectively, and to give
voting instructions to exercise the rights of Owners hereunder with respect to
such changed number of Shares and to act in respect of any other such matter.
16. VOTING OF DEPOSITED SECURITIES.
As of the date of this Deposit Agreement, the Shares do not give the
holders thereof any voting rights, except in certain limited circumstances. If
in the future the terms of the Shares should be revised or amended to provide
for voting rights, or should such Shares otherwise obtain any voting rights,
then, upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be subject to the reasonable discretion
of the Depositary, which shall contain (a) such information as is contained in
such notice of meeting received by the Depositary from the Company, (b) a
statement that the Owners of Receipts as of the close of business on a specified
record date will be entitled, subject to any applicable provision of Brazilian
law and of the By-laws (Estatuto Social) of the Company and the provisions of
the Deposited Securities, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and (c) a
statement as to the manner in which such instructions may be given, including,
when applicable, an express indication that instructions may be given (or, if
applicable, deemed given in accordance with the second paragraph of Section 4.07
of the Deposit Agreement if no instruction is received) to the Depositary to
give a discretionary proxy to a person designated by the Company. Upon the
written request of an Owner of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as practicable and permitted under applicable laws and
the provisions of the By-laws (Estatuto Social) of the Company and the
provisions of the Deposited Securities to vote or cause to be voted the amount
of Shares or other Deposited Securities represented by such American Depositary
Shares evidenced by such Receipt in accordance with any nondiscretionary
instructions set forth in such request including their instruction to give a
discretionary proxy to a person designated by the Company and the Depositary
shall not, and the Depositary shall ensure that the Custodian or any of its
nominees shall not, exercise any voting discretion over any Deposited
Securities.
If after complying with the procedures set forth in this Article, the
Depositary does not receive instructions from the Owner of a Receipt on or
before the date established by the Depositary for such purpose, the Depositary
shall give a discretionary proxy for the Shares evidenced by such Receipt to a
person designated by the Company.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited Securities so received in exchange
or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, after consultation with
the Company, and shall, if the Company shall so request, execute and deliver
additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their directors,
employees, agents or affiliates shall incur any liability to any Owner or holder
of any Receipt, if by reason of any provision of any present or future law or
regulation of the United States, Brazil, or any other country, or of any other
governmental or regulatory authority or stock exchange, including NASDAQ, or by
reason of any provision, present or future, of the By-laws (Estatuto Social) of
the Company or by reason of any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or other circumstances beyond its control, the
Depositary or the Company or any of their directors, employees, agents or
affiliates shall be prevented, delayed or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement it is provided shall be done or
performed; nor shall the Depositary or the Company incur any liability to any
Owner or holder of a Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.04 of the Deposit Agreement, because of applicable law or
for any other reason such distribution or offering may not be made available to
Owners of Receipts, and the Depositary may not dispose of such distribution or
offering on behalf of such Owners and make the net proceeds available to such
Owners, then the Depositary shall not make such distribution or offering, and
shall allow any rights, if applicable, to lapse. Neither the Company nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement or this Receipt to Owners or holders
of Receipts; except that they agree to perform their obligations specifically
set forth in the Deposit Agreement without negligence and to act in good faith
in the performance of such duties. The Depositary shall not be subject to any
liability with respect to the validity or worth of the Deposited Securities.
Neither the Depositary nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit, or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or
holder of a Receipt, or any other person believed by it in good faith to be
competent to give such advice or information including, but not limited to, any
such action or nonaction based upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith. The Depositary
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with a matter arising wholly after the removal or resignation of the
Depositary, provided that in connection with the issue out of which such
potential liability arises, the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary. The Depositary and the
Company may rely on and shall be protected in acting upon any written notice,
request, direction or other documents believed by them to be genuine and to have
been signed by the proper party or parties. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and the Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified, or supplemented from time to time, (i) by either the
Depositary or the Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence of
any of them or the failure of any of them to act in good faith, or (ii) by the
Company or any of its directors, employees, agents and affiliates. No disclaimer
of liability under the Securities Act of 1933 is intended by any provision of
the Deposit Agreement.
The Company shall not indemnify the Depositary or the Custodian against
any liability or expense arising out of information relating to the Depositary
or the Custodian, as the case may be, furnished in writing to the Company and
executed by the Depositary or the Custodian expressly for the use in any
registration statement,
prospectus or placement memorandum or preliminary prospectus or placement
memorandum relating to the Shares evidenced by the American Depositary Shares.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company effective upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided. The Depositary may at any time be removed by the Company
by written notice of such removal effective upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided. In
case at any time the Depositary shall resign or be removed, the Company shall
use its best efforts to appoint a successor depositary, which shall be a bank or
trust company having an office in the Borough of Manhattan, The City of New
York. Every successor depositary shall execute and deliver to its predecessor
and to the Company an instrument in writing accepting its appointment hereunder,
and thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Company, shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners. Whenever the Depositary in its discretion determines that it is in the
best interest of the Owners of Receipts to do so, it may appoint a substitute
custodian.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby except in order to comply with mandatory provisions of
applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding if at any time 60 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.04 of the Deposit Agreement.
On and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.05 of the Deposit Agreement, and (c) payment of any applicable
taxes or governmental charges, be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt. If any Receipts shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell property and rights as provided
in the Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges). At
any time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses. The
obligations of the Depositary under Section 5.08 of the Deposit Agreement shall
survive the termination of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding any terms of this Receipt or the Deposit Agreement to the
contrary, the Company and the Depositary have each agreed that it will not
exercise any rights it has under the Deposit Agreement or the Receipt to prevent
the withdrawal or delivery of Deposited Securities in a manner which would
violate the United States securities laws, including, but not limited to Section
I A(1) of the General Instructions to the Form F-6 Registration Statement, as
amended from time to time, under the Securities Act of 1933.
23. INFORMATION REQUESTS.
The Company may from time to time request Owners of Receipts to provide
information as to the capacity in which such Owners own or owned Receipts and
regarding the identity of any other persons then or previously interested in
such Receipts and the nature of such interest and various other matters. The
Depositary agrees to use reasonable efforts to comply with reasonable written
instructions received from the Company requesting that the Depositary forward
any such requests to the Owner and to forward to the Company any such responses
to such requests received by the Depositary.
Each of the Depositary and the Company hereby confirms to the other that
for as long as the Deposit Agreement is in effect, it shall furnish the CVM and
the Central Bank, at any time and within the period that may be determined, with
any information and documents related to the American Depositary Receipt program
and the Receipts issued thereunder. In the event that the Depositary or the
Custodian shall be advised in writing by reputable independent Brazilian counsel
that the Depositary or the Custodian reasonably could be subject to criminal, or
material, as reasonably determined by the Depositary, civil, liabilities as a
result of the Company having failed to provide such information or documents
reasonably available only through the Company, the Depositary shall have the
right to terminate the Deposit Agreement, upon at least 15 days' prior notice to
the Owners and the Company, and the Depositary shall not be subject to any
liability hereunder
on account of such termination or such determination. The effect of any such
termination of the Deposit Agreement shall be as provided in Section 6.02 of the
Deposit Agreement.
