Exhibit (a)
--------------------------------------------------------------------------------
DEPOSIT AGREEMENT
--------------------------------------------------------------------------------
by and among
EQUATORIAL ENERGIA S.A.
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
ISSUED HEREUNDER
--------------------------------------------------------------------------------
Dated as of [DATE], 2008
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.......................................................................................................1
Section 1.1 "ADS Record Date"............................................................................1
Section 1.2 "Affiliate"..................................................................................1
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"..................................2
Section 1.4 "American Depositary Share(s)" and "ADS(s)"..................................................2
Section 1.5 "Applicant"..................................................................................2
Section 1.6 "BACEN"......................................................................................2
Section 1.7 "Beneficial Owner"...........................................................................2
Section 1.8 "BOVESPA"....................................................................................2
Section 1.9 "Brazil".....................................................................................2
Section 1.10 "Bylaws".....................................................................................2
Section 1.11 "CBLC".......................................................................................3
Section 1.12 "Certificated ADS(s)"........................................................................3
Section 1.13 "Commission".................................................................................3
Section 1.14 "Company"....................................................................................3
Section 1.15 "Custodian"..................................................................................3
Section 1.16 "CVM"........................................................................................3
Section 1.17 "Deliver" and "Delivery".....................................................................3
Section 1.18 "Deposit Agreement"..........................................................................3
Section 1.19 "Depositary".................................................................................3
Section 1.20 "Deposited Securities".......................................................................3
Section 1.21 "Dollars" and "$"............................................................................3
Section 1.22 "DTC"........................................................................................3
Section 1.23 "DTC Participant"............................................................................4
Section 1.24 "Exchange Act"...............................................................................4
Section 1.25 "Foreign Currency"...........................................................................4
Section 1.26 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)"
and "Full Entitlement Share(s)"..............................................................4
Section 1.27 "Holder(s)"..................................................................................4
Section 1.28 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)"...........................................................4
Section 1.29 "Pre-Release Transaction"....................................................................4
Section 1.30 "Principal Office"...........................................................................4
Section 1.31 "Registrar"..................................................................................4
Section 1.32 "Restricted Securities"......................................................................4
Section 1.33 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted Shares".............................5
Section 1.34 "Securities Act".............................................................................5
Section 1.35 "Share Registrar"............................................................................5
Section 1.36 "Shares".....................................................................................5
Section 1.37 "Uncertificated ADS(s)"......................................................................5
Section 1.38 "United States" and "U.S."...................................................................5
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.............................................................................................5
Section 2.1 Appointment of Depositary....................................................................5
Section 2.2 Form and Transferability of ADSs.............................................................6
Section 2.3 Deposit with Custodian.......................................................................7
Section 2.4 Registration and Safekeeping of Deposited Securities.........................................9
Section 2.5 Issuance of ADSs.............................................................................9
Section 2.6 Transfer, Combination and Split-up of ADRs...................................................9
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities....................................10
Section 2.8 Limitations on Execution and Delivery, Transfer, etc.
of ADSs; Suspension of Delivery, Transfer, etc..............................................12
Section 2.9 Lost ADRs, etc..............................................................................12
Section 2.10 Cancellation and Destruction of Surrendered ADRs;
Maintenance of Records......................................................................13
Section 2.11 Escheatment.................................................................................13
Section 2.12 Partial Entitlement ADSs....................................................................13
Section 2.13 Certificated/Uncertificated ADSs............................................................14
Section 2.14 Restricted ADSs.............................................................................15
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs.....................................................16
Section 3.1 Proofs, Certificates and Other Information..................................................16
Section 3.2 Liability for Taxes and Other Charges.......................................................17
Section 3.3 Representations and Warranties on Deposit of Shares.........................................17
Section 3.4 Compliance with Information Requests........................................................18
Section 3.5 Ownership Restrictions......................................................................18
Section 3.6 Reporting Obligations and Regulatory Approvals..............................................19
ARTICLE IV
THE DEPOSITED SECURITIES.........................................................................................19
Section 4.1 Cash Distributions..........................................................................19
Section 4.2 Distribution in Shares......................................................................20
Section 4.3 Elective Distributions in Cash or Shares....................................................20
Section 4.4 Distribution of Rights to Purchase Additional ADSs..........................................21
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares..........................23
Section 4.6 Redemption..................................................................................23
Section 4.7 Conversion of Foreign Currency..............................................................24
Section 4.8 Fixing of ADS Record Date...................................................................25
Section 4.9 Voting of Deposited Securities..............................................................25
Section 4.10 Changes Affecting Deposited Securities......................................................26
Section 4.11 Available Information.......................................................................27
Section 4.12 Reports.....................................................................................27
Section 4.13 List of Holders.............................................................................28
Section 4.14 Taxation....................................................................................28
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY....................................................................29
Section 5.1 Maintenance of Office and Transfer Books by the Registrar...................................29
Section 5.2 Exoneration.................................................................................29
Section 5.3 Standard of Care............................................................................30
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary.....................................................................31
Section 5.5 The Custodian...............................................................................32
Section 5.6 Notices and Reports.........................................................................32
Section 5.7 Issuance of Additional Shares, ADSs etc.....................................................33
Section 5.8 Indemnification.............................................................................34
Section 5.9 Fees and Charges of Depositary..............................................................35
Section 5.10 Pre-Release Transactions....................................................................36
Section 5.11 Restricted Securities Owners................................................................36
ARTICLE VI
AMENDMENT AND TERMINATION........................................................................................36
Section 6.1 Amendment/Supplement........................................................................36
Section 6.2 Termination.................................................................................37
ARTICLE VII
MISCELLANEOUS....................................................................................................38
Section 7.1 Counterparts................................................................................38
Section 7.2 No Third-Party Beneficiaries................................................................38
Section 7.3 Severability................................................................................39
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect....................................39
Section 7.5 Notices.....................................................................................39
Section 7.6 Governing Law and Jurisdiction..............................................................40
Section 7.7 Assignment..................................................................................41
Section 7.8 Compliance with U.S. Securities Laws........................................................41
Section 7.9 Titles and References.......................................................................42
EXHIBITS
Form of ADR................................................................................A-1
Fee Schedule...............................................................................B-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [DATE], 2008, by and among (i) EQUATORIAL
ENERGIA S.A., a company organized under the laws of the Federative Republic of
Brazil, and its successors (the "Company"), (ii) CITIBANK, N.A., a national
banking association organized under the laws of the United States of America
acting in its capacity as depositary, and any successor depositary hereunder
(the "Depositary"), and (iii) all Holders and Beneficial Owners of American
Depositary Shares issued hereunder (all such capitalized terms as hereinafter
defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide inter alia for the deposit of the Shares (as hereinafter
defined) and the creation of American Depositary Shares representing the Shares
so deposited; and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in the Deposit Agreement (as hereinafter
defined); and
WHEREAS, any American Depositary Receipts issued pursuant to the terms of
the Deposit Agreement are to be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in the Deposit Agreement; and
WHEREAS, the Shares are listed on the Novo Xxxxxxx listing segment of the
Sao Paulo Stock Exchange (Bolsa de Valores de Sao Paulo S/A - BVSP, also known
as "BOVESPA"); and
WHEREAS, the Board of Directors of the Company has duly approved the
establishment of an ADR facility upon the terms set forth in the Deposit
Agreement, the execution and delivery of the Deposit Agreement on behalf of the
Company, and the actions of the Company and the transactions contemplated
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "ADS Record Date" shall have the meaning given to such term in
Section 4.9.
Section 1.2 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
1
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of the Deposit Agreement in the form of
Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from
time to time in accordance with the provisions of the Deposit Agreement. An ADR
may evidence any number of ADSs and may, in the case of ADSs held through a
central depository such as DTC, be in the form of a "Balance Certificate."
Section 1.4 "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities (as hereinafter defined)
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of the Deposit Agreement and, if issued as Certificated ADS(s), (as
hereinafter defined) the ADR(s) issued to evidence such ADSs. ADS(s) may be
issued under the terms of the Deposit Agreement in the form of (a) Certificated
ADS(s) (as hereinafter defined), in which case the ADS(s) are evidenced by
ADR(s), or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the
ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration
system maintained by the Depositary for such purposes under the terms of Section
2.13. Unless otherwise specified in the Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference to ADS(s) shall include
Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as
the context may require. Each ADS shall represent the right to receive one (1)
Share until there shall occur a distribution upon Deposited Securities referred
to in Section 4.2 or a change in Deposited Securities referred to in Section
4.11 with respect to which additional ADSs are not issued, and thereafter each
ADS shall represent the Deposited Securities determined in accordance with the
terms of such Sections.
Section 1.5 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.6 "BACEN" shall mean the Brazilian Central Bank (Banco Central
do Brasil).
Section 1.7 "Beneficial Owner" shall mean, as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A Beneficial
Owner shall be able to exercise any right or receive any benefit hereunder
solely through the person who is the Holder of the ADSs owned by such Beneficial
Owner. Unless otherwise identified to the Depositary, a Holder shall be deemed
to be the Beneficial Owner of all the ADSs registered in his/her/its name.
Section 1.8 "BOVESPA" shall mean the Sao Paulo Stock Exchange (Bolsa de
Valores de Sao Paulo S.A. - BVSP).
Section 1.9 "Brazil"shall mean the Federative Republic of Brazil.
Section 1.10 "Bylaws" shall mean the bylaws of the Company, as in effect
from time to time.
2
Section 1.11 "CBLC" shall mean Companhia Brasileira de Liquidacao e
Custodia - CBLC, which provides the book-entry settlement system for securities
in Brazil, or any successor entity thereto.
Section 1.12 "Certificated ADS(s)" shall have the meaning set forth in
Section 2.13.
Section 1.13 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency thereto in
the United States.
Section 1.14 "Company" shall mean Equatorial Energia S.A., a company
incorporated and existing under the laws of Brazil, and its successors.
Section 1.15 "Custodian" shall mean (i) as of the date hereof, Citibank
DTVM S.A., having its principal office at Xxxxxxx Xxxxxxxx 0.000, Xxx Xxxxx, XX
00000-000, acting as custodian of Deposited Securities pursuant to the Deposit
Agreement or (ii) any other entity that may be appointed by the Depositary
pursuant to the terms of Section 5.5 as successor or substitute custodian
hereunder.
Section 1.16 "CVM" shall mean the Brazilian Securities and Exchange
Commission (Comissao de Valores Mobiliarios).
Section 1.17 "Deliver" and "Delivery" shall mean, when used in respect of
ADSs, Deposited Securities and Shares, either (i) the physical delivery of the
certificate(s) representing such securities, or (ii) the electronic delivery of
such securities by means of book-entry transfer, if available.
Section 1.18 "Deposit Agreement" shall mean this Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
from time to time in accordance with the terms of the Deposit Agreement.
Section 1.19 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of the Deposit Agreement, and any successor
depositary hereunder.
Section 1.20 "Deposited Securities" shall mean Shares at any time
deposited under the Deposit Agreement and any and all other securities, property
and cash held by the Depositary or the Custodian in respect thereof, subject, in
the case of cash, to the provisions of Section 4.8. The collateral delivered in
connection with Pre-Release Transactions described in Section 5.10 shall not
constitute Deposited Securities.
Section 1.21 "Dollars" and "$" shall refer to the lawful currency of the
United States.
Section 1.22 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
3
Section 1.23 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
Section 1.24 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
Section 1.25 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.26 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.11.
Section 1.27 "Holder(s)" shall mean the person(s) in whose name the ADSs
are registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADS(s) registered in its name, such
person shall be deemed, for all purposes hereunder, to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs registered in
its name.
Section 1.28 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the respective meanings set forth
in Section 2.11.
Section 1.29 "Pre-Release Transaction" shall have the meaning set forth in
Section 5.10.
Section 1.30 "Principal Office" shall mean, when used with respect to the
Depositary, the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of the Deposit Agreement, is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
Section 1.31 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which, upon prior notice to the Company, shall be appointed by the Depositary to
register issuances, transfers and cancellations of ADSs as herein provided, and
shall include any co-registrar appointed by the Depositary for such purposes.
Registrars (other than the Depositary) may be removed and substitutes appointed
by the Depositary upon prior notification to the Company. Each Registrar (other
than the Depositary) appointed pursuant to the Deposit Agreement shall be
required to give notice in writing to the Depositary accepting such appointment
and agreeing to be bound by the applicable terms of the Deposit Agreement.
Section 1.32 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (or persons performing similar functions) or other Affiliate of the
Company, or (iii) are subject to other restrictions on sale or deposit under the
laws of the United States, Brazil, or under a shareholder agreement or the
Bylaws of the Company or under the regulations of an applicable securities
exchange unless, in each case, such Shares, Deposited Securities or ADSs are
being transferred or sold to persons other than an Affiliate of the Company in a
transaction (a) covered by an effective resale registration statement, or (b)
exempt from the registration requirements of the Securities Act (as hereinafter
defined), and the Shares, Deposited Securities or ADSs are not, when held by
such person(s), Restricted Securities.
4
Section 1.33 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares" shall have the respective meanings set forth in Section 2.14.
Section 1.34 "Securities Act" shall mean the United States Securities Act
of 1933, as amended from time to time.
Section 1.35 "Share Registrar" shall mean Banco Itau S/A or any other
institution organized under the laws of Brazil appointed by the Company to carry
out the duties of registrar for the Shares, and any successor thereto.
Section 1.36 "Shares"shall mean the Company's ordinary shares, without par
value, validly issued and outstanding and fully paid and may, if the Depositary
so agrees after consultation with the Company, include evidence of the right to
receive Shares; provided that in no event shall Shares include evidence of the
right to receive Shares with respect to which the full purchase price has not
been paid or Shares as to which preemptive rights have theretofore not been
validly waived or exercised; provided further, however, that, if there shall
occur any change in par or nominal value, split-up, consolidation,
reclassification, exchange, conversion or any other event described in Section
4.11 in respect of the Shares of the Company, the term "Shares" shall
thereafter, to the maximum extent permitted by law, represent the successor
securities resulting from such event.
Section 1.37 "Uncertificated ADS(s)" shall have the meaning set forth in
Section 2.13.
Section 1.38 "United States" and "U.S." shall have the meaning assigned to
it in Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms and conditions set
forth in the Deposit Agreement and the applicable ADRs. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
in accordance with the terms and conditions of the Deposit Agreement shall be
deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in the Deposit Agreement and the applicable
ADR(s), to adopt any and all procedures necessary to comply with applicable law
and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of the Deposit Agreement and
the applicable ADR(s), the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
5
Section 2.2 Form and Transferability of ADSs.
(a) Form. Certificated ADSs shall be evidenced by definitive ADRs which
shall be engraved, printed, lithographed or produced in such other manner as may
be agreed upon by the Company and the Depositary. ADRs may be issued under the
Deposit Agreement in denominations of any whole number of ADSs. The ADRs shall
be substantially in the form set forth in Exhibit A to the Deposit Agreement,
with any appropriate insertions, modifications and omissions, in each case as
otherwise contemplated in the Deposit Agreement or required by law. ADRs shall
be (i) dated, (ii) signed by the manual or facsimile signature of a duly
authorized signatory of the Depositary, (iii) countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar, and (iv)
registered in the books maintained by the Registrar for the registration of
issuances and transfers of ADSs. No ADR and no Certificated ADS evidenced
thereby shall be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company,
unless such ADR shall have been so dated, signed, countersigned and registered.
ADRs bearing the facsimile signature of a duly-authorized signatory of the
Depositary or the Registrar, who at the time of signature was a duly-authorized
signatory of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such ADR by the Depositary. The ADRs shall
bear a CUSIP number that is different from any CUSIP number that was, is or may
be assigned to any depositary receipts previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not ADRs outstanding hereunder.
(b) Legends. The ADRs may be endorsed with, or have incorporated in the
text thereof, such legends or recitals not inconsistent with the provisions of
the Deposit Agreement as (i) may be reasonably deemed necessary or appropriate
for the Depositary and the Company to perform their respective obligations
hereunder, (ii) may be required to comply with any applicable laws or
regulations, or with the rules and regulations of any securities exchange or
market upon which ADSs may be traded, listed or quoted, or to conform with any
usage with respect thereto, (iii) may be necessary to indicate any special
limitations or restrictions to which any particular ADRs or ADSs are subject by
reason of the date of issuance of the Deposited Securities or otherwise, or (iv)
may be required by any book-entry system in which the ADSs are held. Holders and
Beneficial Owners shall be deemed, for all purposes, to have notice of, and to
be bound by, the terms and conditions of the legends set forth, in the case of
Holders, on the ADR registered in the name of the applicable Holders or, in the
case of Beneficial Owners, on the ADR representing the ADSs owned by such
Beneficial Owners.
(c) Title. Subject to the limitations contained herein and in the ADR,
title to an ADR (and to each Certificated ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that, in the case of Certificated ADSs, such ADR
has been properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
6
deem and treat the Holder of an ADS (that is, the person in whose name an ADS is
registered on the books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any obligation nor
be subject to any liability under the Deposit Agreement or any ADR to any holder
or any Beneficial Owner unless such holder is the Holder registered on the books
of the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner,
or the Beneficial Owner's representative, is the Holder registered on the books
of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for the
acceptance of the ADSs into DTC. All ADSs held through DTC will be registered in
the name of the nominee for DTC (currently "Cede & Co."). As such, the nominee
for DTC will be the only "Holder" of all ADSs held through DTC. Unless issued by
the Depositary as Uncertificated ADSs, the ADSs registered in the name of Cede &
Co. will be evidenced by a single ADR in the form of a "Balance Certificate,"
which will provide that it represents the aggregate number of ADSs from time to
time indicated in the records of the Depositary as being issued hereunder and
that the aggregate number of ADSs represented thereby may from time to time be
increased or decreased by making adjustments on such records of the Depositary
and of DTC or its nominee as hereinafter provided. Citibank, N.A. (or such other
entity as is appointed by DTC or its nominee) may hold the "Balance Certificate"
as custodian for DTC. Each Beneficial Owner of ADSs held through DTC must rely
upon the procedures of DTC and the DTC Participants to exercise or be entitled
to any rights attributable to such ADSs. The DTC Participants shall for all
purposes be deemed to have all requisite power and authority to act on behalf of
the Beneficial Owners of the ADSs held in the DTC Participants' respective
accounts in DTC and the Depositary shall for all purposes be authorized to rely
upon any instructions and information given to it by DTC Participants on behalf
of Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADSs
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC or
its nominee (with respect to the interests of DTC Participants), or (ii) DTC
Participants or their nominees (with respect to the interests of clients of DTC
Participants).
Section 2.3 Deposit with Custodian. Subject to the terms and conditions of
the Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7) at any
time, whether or not the transfer books of the Company or the Share Registrar,
if any, are closed, by Delivery of the Shares to the Custodian. Every deposit of
Shares shall be accompanied by the following: (A) (i) in the case of Shares
represented by certificates issued in registered form, appropriate instruments
of transfer or endorsement, in a form satisfactory to the Custodian, and (ii) in
the case of Shares delivered by book-entry transfer, confirmation of such
book-entry transfer to the Custodian or that irrevocable instructions have been
given to cause such Shares to be so transferred, (B) such certifications and
payments (including, without limitation, the Depositary's fees and related
charges) and evidence of such payments (including, without limitation, stamping
or otherwise marking such Shares by way of receipt) as may be required by the
Depositary or the Custodian in accordance with the provisions of the Deposit
Agreement and applicable law, (C) if the Depositary so requires, a written order
directing the Depositary to issue and deliver to, or upon the written order of,
the person(s) stated in such order the number of ADSs representing the Shares so
7
deposited, (D) evidence satisfactory to the Depositary (which may be an opinion
of counsel) that all necessary approvals have been granted by, or there has been
compliance with the rules and regulations of, any applicable governmental agency
in Brazil, except, as the case may be, for the approval of the ADR program by
the Brazilian Securities and Exchange Commission (Comissao de Valores
Mobiliarios, also known as "CVM"), and (E) if the Depositary so requires, (i) an
agreement, assignment or instrument satisfactory to the Depositary or the
Custodian which provides for the prompt transfer by any person in whose name the
Shares are or have been recorded to the Custodian of any distribution, or right
to subscribe for additional Shares or to receive other property in respect of
any such deposited Shares or, in lieu thereof, such indemnity or other agreement
as shall be satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to exercise
voting rights in respect of the Shares (subject to the terms of the Deposit
Agreement, including, without limitation, Section 4.10 of the Deposit Agreement)
for any and all purposes until the Shares so deposited are registered in the
name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of the Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities (except as
contemplated by Section 2.14) nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Shares shall be accepted for deposit unless accompanied by evidence, if any
is required by the Depositary, that is reasonably satisfactory to the Depositary
or the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under the laws and regulations of Brazil and any
necessary approval has been granted by any applicable governmental body in
Brazil, if any. The Depositary may issue ADSs against evidence of rights to
receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement (A) any Shares or other
securities required to be registered under the provisions of the Securities Act,
unless (i) a registration statement is in effect as to such Shares or other
securities or (ii) the deposit is made upon terms contemplated in Section 2.14,
or (B) any Shares or other securities the deposit of which would violate any
provisions of the Brazilian Central Bank (Banco Central do Brasil, also known as
"BACEN"), CVM, BOVESPA, the BOVESPA Novo Xxxxxxx listing segment and Bylaws of
the Company. For purposes of the foregoing sentence, the Depositary shall be
entitled to rely upon representations and warranties made or deemed made
pursuant to the Deposit Agreement and shall not be required to make any further
investigation. The Depositary will comply with written instructions of the
Company (received by the Depositary reasonably in advance) not to accept for
deposit hereunder any Shares identified in such instructions at such times and
under such circumstances as may reasonably be specified in such instructions in
order to facilitate the Company's compliance with the securities laws of the
United States.
8
Section 2.4 Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to the
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Section 2.5 Issuance of ADSs. The Depositary has made arrangements with
the Custodian for the Custodian to confirm to the Depositary upon receipt of a
deposit of Shares (i) that a deposit of Shares has been made pursuant to Section
2.3, (ii) that such Deposited Securities have been recorded in the name of the
Depositary, the Custodian or a nominee of either on the shareholders' register
maintained by or on behalf of the Company by the Share Registrar if registered
Shares have been deposited or, if deposit is made by book-entry transfer,
confirmation of such transfer in the books of the CBLC, (iii) that all required
documents have been received, and (iv) the person(s) to whom or upon whose order
ADSs are deliverable in respect thereof and the number of ADSs to be so
delivered. Such notification may be made by letter, cable, telex, SWIFT message
or, at the risk and expense of the person making the deposit, by facsimile or
other means of electronic transmission. Upon receiving such notice from the
Custodian, the Depositary, subject to the terms and conditions of the Deposit
Agreement and applicable law, shall issue the ADSs representing the Shares so
deposited to or upon the order of the person(s) named in the notice delivered to
the Depositary and, if applicable, shall execute and deliver at its Principal
Office Receipt(s) registered in the name(s) requested by such person(s) and
evidencing the aggregate number of ADSs to which such person(s) are entitled,
but, in each case, only upon payment to the Depositary of the charges of the
Depositary for accepting a deposit, issuing ADSs (as set forth in Section 5.9
and Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Shares and the issuance of
the ADS(s). The Depositary shall only issue ADSs in whole numbers and deliver,
if applicable, ADR(s) evidencing whole numbers of ADSs. Nothing herein shall
prohibit any Pre-Release Transaction upon the terms set forth in the Deposit
Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs.
(a) Transfer. The Registrar shall register the transfer of ADRs (and of
the ADSs represented thereby) on the books maintained for such purpose and the
Depositary shall (x) cancel such ADRs and execute new ADRs evidencing the same
aggregate number of ADSs as those evidenced by the ADRs canceled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z) Deliver
such new ADRs to or upon the order of the person entitled thereto, if each of
the following conditions has been satisfied: (i) the ADRs have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) the surrendered ADRs have been properly endorsed or are
accompanied by proper instruments of transfer (including signature guarantees in
9
accordance with standard securities industry practice), (iii) the surrendered
ADRs have been duly stamped (if required by the laws of the State of New York or
of the United States), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable ADRs, of
the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
(b) Combination & Split Up. The Registrar shall register the split-up or
combination of ADRs (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall (x) cancel such ADRs and
execute new ADRs for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the ADRs cancelled by the Depositary,
(y) cause the Registrar to countersign such new ADRs and (z) Deliver such new
ADRs to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) the ADRs have been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination thereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B hereto) have been paid, subject, however, in each
case, to the terms and conditions of the applicable ADRs, of the Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
(c) Co-Transfer Agents. The Depositary, upon prior notification to the
Company, may appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices on
behalf of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such ADRs and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary, upon prior
notification to the Company. Each co-transfer agent appointed under this Section
2.6 (other than the Depositary) shall give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
the Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. The
Holder of ADSs shall be entitled to Delivery (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the Depositary, the ADRs
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered 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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B)
have been paid, subject, however, in each case, to the terms and conditions of
the ADRs evidencing the surrendered ADSs, of the Deposit Agreement, of the
Company's Bylaws and of any applicable laws and the rules of the CBLC, and to
any provisions of or governing the Deposited Securities , in each case as in
effect at the time thereof.
10
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall promptly cancel the ADSs Delivered to it (and, if
applicable, the ADRs evidencing the ADSs so Delivered), (ii) shall direct the
Registrar to record the cancellation of the ADSs so Delivered on the books
maintained for such purpose, and (iii) shall direct the Custodian to Deliver
(without unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the ADRs evidencing the ADSs so
cancelled, of the Bylaws of the Company, of any applicable laws and of the rules
of the CBLC, and to the terms and conditions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one (1) Share. In the case of the Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
11
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of ADSs;
Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration of issuance, transfer, split-up, combination or
surrender, of any ADS, the delivery of any distribution thereon, or the
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the depositor of Shares or presenter of ADSs or of an
ADR of a sum sufficient to reimburse it for any tax or other governmental charge
and any stock transfer or registration fee with respect thereto (including any
such tax or charge and fee with respect to Shares being deposited or withdrawn)
and payment of any applicable fees and charges of the Depositary as provided in
Section 5.9 and Exhibit B, (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature or any other matter contemplated
by Section 3.1, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or to the
withdrawal of Deposited Securities and (B) such reasonable regulations as the
Depositary and the Company may establish consistent with the provisions of the
representative ADR, if applicable, the Deposit Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be suspended, or
the deposit of particular Shares may be refused, or the registration of transfer
of ADSs in particular instances may be refused, or the registration of transfers
of ADSs generally may be suspended, during any period when the transfer books of
the Company, the Depositary, a Registrar or the Share Registrar are closed or if
any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law or regulation, any government or governmental body or
commission or any securities exchange on which the ADSs or Shares are listed, or
under any provision of the Deposit Agreement or the representative ADR(s), if
applicable, or under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8.
(c) Regulatory Restrictions. Notwithstanding any provision of the Deposit
Agreement or any ADR(s) to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities associated herewith at any
time subject only to (i) temporary delays caused by closing the transfer books
of the Depositary or the Company or the deposit of Shares in connection with
voting at a shareholders' meeting or the payment of dividends, (ii) the payment
of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign
laws or governmental regulations relating to the ADSs or to the withdrawal of
the Deposited Securities, and (iv) other circumstances specifically contemplated
by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed,
lost, or stolen, the Depositary shall execute and deliver a new ADR of like
tenor at the expense of the Holder (a) in the case of a mutilated ADR, in
exchange of and substitution for such mutilated ADR upon cancellation thereof,
or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and in
substitution for such destroyed, lost, or stolen ADR, after the Holder thereof
(i) has submitted to the Depositary a written request for such exchange and
12
substitution before the Depositary has notice that the ADR has been acquired by
a bona fide purchaser, (ii) has provided such security or indemnity (including
an indemnity bond) as may be required by the Depositary to hold it and any of
its agents harmless, and (iii) has satisfied any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence satisfactory
to the Depositary of such destruction, loss or theft of such ADR, the
authenticity thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance
of Records. All ADRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry
form (i.e., through accounts at DTC) shall be deemed canceled when the
Depositary causes the number of ADSs evidenced by the Balance Certificate to be
reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate). .
Section 2.11 Escheatment. In the event any unclaimed property relating to
the ADSs, for any reason, is in the possession of Depositary and has not been
claimed by the Holder thereof or cannot be delivered to the Holder thereof
through usual channels, the Depositary shall, upon expiration of any applicable
statutory period relating to abandoned property laws, escheat such unclaimed
property to the relevant authorities in accordance with the laws of each of the
relevant States of the United States.
Section 2.12 Partial Entitlement ADSs. In the event any Shares are
deposited which (i) entitle the holders thereof to receive a per-share
distribution or other entitlement in an amount different from the Shares then on
deposit or (ii) are not fully fungible (including, without limitation, as to
settlement or trading) with the Shares then on deposit (the Shares then on
deposit collectively, "Full Entitlement Shares" and the Shares with different
entitlement, "Partial Entitlement Shares"), the Depositary shall (i) cause the
Custodian to hold Partial Entitlement Shares separate and distinct from Full
Entitlement Shares, and (ii) subject to the terms of the Deposit Agreement,
issue ADSs representing Partial Entitlement Shares which are separate and
distinct from the ADSs representing Full Entitlement Shares, by means of
separate CUSIP numbering and legending (if necessary) and, if applicable, by
issuing ADRs evidencing such ADSs with applicable notations thereon ("Partial
Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs", respectively). If and
when Partial Entitlement Shares become Full Entitlement Shares, the Depositary
shall (a) give notice thereof to Holders of Partial Entitlement ADSs and give
Holders of Partial Entitlement ADRs the opportunity to exchange such Partial
Entitlement ADRs for Full Entitlement ADRs, (b) cause the Custodian to transfer
the Partial Entitlement Shares into the account of the Full Entitlement Shares,
and (c) take such actions as are necessary to remove the distinctions between
(i) the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full
Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of Partial
Entitlement ADSs shall only be entitled to the entitlements of Partial
Entitlement Shares. Holders and Beneficial Owners of Full Entitlement ADSs shall
be entitled only to the entitlements of Full Entitlement Shares. All provisions
and conditions of the Deposit Agreement shall apply to Partial Entitlement ADRs
and ADSs to the same extent as Full Entitlement ADRs and ADSs, except as
contemplated by this Section 2.12. The Depositary is authorized to take any and
13
all other actions as may be necessary (including, without limitation, making the
necessary notations on ADRs) to give effect to the terms of this Section 2.12.
The Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued are Partial Entitlement Shares and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.13 Certificated/Uncertificated ADSs. Notwithstanding any other
provision of the Deposit Agreement, the Depositary may, at any time and from
time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). When issuing and maintaining Uncertificated ADS(s) under the Deposit
Agreement, the Depositary shall at all times be subject to (i) the standards
applicable to registrars and transfer agents maintaining direct registration
systems for equity securities in New York and issuing uncertificated securities
under New York law, and (ii) the terms of New York law applicable to
uncertificated equity securities. Uncertificated ADSs shall not be represented
by any instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are
not subject to any registered pledges, liens, restrictions or adverse claims of
which the Depositary has notice at such time, shall at all times have the right
to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the same type
and class, subject in each case to applicable laws and any rules and regulations
the Depositary may have established in respect of the Uncertificated ADSs.
Holders of Certificated ADSs shall, if the Depositary maintains a direct
registration system for the ADSs, have the right to exchange the Certificated
ADSs for Uncertificated ADSs upon (i) the due surrender of the Certificated
ADS(s) to the Depositary for such purpose and (ii) the presentation of a written
request to that effect to the Depositary, subject in each case to (a) all liens
and restrictions noted on the ADR evidencing the Certificated ADS(s) and all
adverse claims of which the Depositary then has notice, (b) the terms of the
Deposit Agreement and the rules and regulations that the Depositary may
establish for such purposes hereunder, (c) applicable law, and (d) payment of
the Depositary fees and expenses applicable to such exchange of Certificated
ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all respects be
identical to Certificated ADS(s) of the same type and class, except that (i) no
ADR(s) shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit Agreement,
be transferable upon the same terms and conditions as uncertificated securities
under New York law, (iii) the ownership of Uncertificated ADS(s) shall be
recorded on the books of the Depositary maintained for such purpose and evidence
of such ownership shall be reflected in periodic statements provided by the
Depositary to the Holder(s) in accordance with applicable New York law, (iv) the
Depositary may from time to time, upon notice to the Holders of Uncertificated
ADSs affected thereby, establish rules and regulations, and amend or supplement
existing rules and regulations, as may be deemed reasonably necessary to
maintain Uncertificated ADS(s) on behalf of Holders, provided that (a) such
rules and regulations do not conflict with the terms of the Deposit Agreement
and applicable law, and (b) the terms of such rules and regulations are readily
available to Holders upon request, (v) the Uncertificated ADS(s) shall not be
entitled to any benefits under the Deposit Agreement or be valid or enforceable
for any purpose against the Depositary or the Company unless such Uncertificated
ADS(s) is/are registered on the books of the Depositary maintained for such
purpose, (vi) the Depositary may, in connection with any deposit of Shares
14
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may deem reasonably appropriate, and (vii)
upon termination of the Deposit Agreement, the Depositary shall not require
Holders of Uncertificated ADSs to affirmatively instruct the Depositary before
remitting proceeds from the sale of the Deposited Securities represented by such
Holders' Uncertificated ADSs under the terms of Section 6.2 of the Deposit
Agreement. When issuing ADSs under the terms of the Deposit Agreement,
including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3,
4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue
Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically
instructed by the applicable Holder to issue Certificated ADSs. All provisions
and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this Section
2.13. The Depositary is authorized and directed to take any and all actions and
establish any and all procedures deemed reasonably necessary to give effect to
the terms of this Section 2.13. Any references in the Deposit Agreement or any
ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the
context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.13 and except as required by
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of the Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.13) and (b) the terms of this Section 2.13,
the terms and conditions set forth in this Section 2.13 shall be controlling and
shall govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the Uncertificated ADSs.
Section 2.14 Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all steps necessary and reasonably satisfactory to the Depositary to
insure that the establishment of such procedures does not violate the provisions
of the Securities Act or any other applicable laws. The depositors of such
Restricted Shares and the holders of the Restricted ADSs may be required prior
to the deposit of such Restricted Shares, the transfer of the Restricted ADRs
and the Restricted ADSs evidenced thereby or the withdrawal of the Restricted
Shares represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
15
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the Holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by the Deposit Agreement and
(ii) an opinion of counsel satisfactory to the Depositary setting forth, inter
alia, the conditions upon which the Restricted ADR presented is, and the
Restricted ADSs evidenced thereby are, transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Restricted ADR presented for transfer. Except as set forth in
this Section 2.14 and except as required by applicable law, the Restricted ADRs
and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs
issued and outstanding under the terms of the Deposit Agreement. In the event
that, in determining the rights and obligations of parties hereto with respect
to any Restricted ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.14) and (b) the terms of (i) this Section
2.14 or (ii) the applicable Restricted ADR, the terms and conditions set forth
in this Section 2.14 and of the Restricted ADR shall be controlling and shall
govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the deposited Restricted Shares, the Restricted ADSs and
Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares cease to
be Restricted Securities, the Depositary, upon receipt of (x) an opinion of
counsel satisfactory to the Depositary setting forth, inter alia, that the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of
such time Restricted Securities, and (y) instructions from the Company to remove
the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the
Restricted Shares, shall (i) eliminate the distinctions and separations between
the applicable Restricted Shares held on deposit under this Section 2.14 and the
other Shares held on deposit under the terms of the Deposit Agreement that are
not Restricted Shares, (ii) treat the newly unrestricted ADRs and ADSs on the
same terms as, and fully fungible with, the other ADRs and ADSs issued and
outstanding under the terms of the Deposit Agreement that are not Restricted
ADRs or Restricted ADSs, (iii) take all actions necessary to remove any
distinctions, limitations and restrictions previously existing under this
Section 2.14 between the applicable Restricted ADRs and Restricted ADSs,
respectively, on the one hand, and the other ADRs and ADSs that are not
Restricted ADRs or Restricted ADSs, respectively, on the other hand, including,
without limitation, by making the newly-unrestricted ADSs eligible for
Pre-Release Transactions and for inclusion in the applicable book-entry
settlement systems.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
16
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar) as the Depositary or the Custodian may deem
reasonably necessary or proper or as the Company may require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any ADR or ADS
or the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of Section 7.8, the
delivery of any Deposited Securities until such proof or other information is
filed or such certifications are executed, or such representations are made, or
such other documentation or information provided, in each case to the
Depositary's, the Registrar's and the Company's satisfaction. The Depositary
shall provide the Company, in a timely manner, with copies or originals if
necessary and appropriate of (i) any such proofs of citizenship or residence,
taxpayer status, or exchange control approval, or written representations or
warranties which it receives from Holders and Beneficial Owners, and (ii) any
other information or documents which the Company may reasonably request and
which the Depositary shall request and receive from any Holder or Beneficial
Owner or any person presenting Shares for deposit or ADSs for cancellation,
transfer or withdrawal. Nothing herein shall obligate the Depositary to (i)
obtain any information for the Company if not provided by the Holders or
Beneficial Owners, or (ii) verify or vouch for the accuracy of the information
so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or other governmental charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer of ADSs, register the split-up or combination of ADRs and (subject
to Section 7.8) the withdrawal of Deposited Securities until payment in full of
such tax, charge, penalty or interest is received. Every Holder and Beneficial
Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of
their agents, officers, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
17
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.14), and (vi) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of the Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the BACEN, the CVM, the BOVESPA,
the BOVESPA's Novo Xxxxxxx listing segment and of any other stock exchange on
which the Shares or ADSs are, or will be, registered, traded or listed or the
Bylaws of the Company, which are made to provide information, inter alia, as to
the capacity in which such Holder or Beneficial Owner owns ADSs (and Shares as
the case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such request. The
Depositary agrees to use its reasonable efforts to forward, upon the request of
the Company and at the Company's expense, any such request from the Company to
the Holders and to forward to the Company any such responses to such requests
received by the Depositary.
The Depositary and the Company shall comply with paragraph 3, article 3 of
Regulation Annex V to Resolution 1.289.87 (as published in Resolution 1.927/92)
of the Brazilian National Monetary Council, and agree to furnish the CVM and the
BACEN, whenever required, information or documents related to the approved ADR
program, the Deposited Securities and distributions thereon.
Section 3.5 Ownership Restrictions.Notwithstanding any other provision in
the Deposit Agreement or any ADR, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Bylaws of the Company. The Company may also
restrict, in such manner as it deems appropriate, transfers of the ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including, but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Bylaws of the Company. Nothing herein shall be interpreted as
obligating the Depositary or the Company to ensure compliance with the ownership
restrictions described in this Section 3.5.
18
Section 3.6 Reporting Obligations and Regulatory Approvals. Applicable
laws and regulations, including those of the BACEN, the CVM, the BOVESPA and
BOVESPA's Novo Xxxxxxx listing segment may require holders and beneficial owners
of Shares, including the Holders and Beneficial Owners of ADSs, to satisfy
reporting requirements and obtain regulatory approvals in certain circumstances.
Holders and Beneficial Owners of ADSs are solely responsible for complying with
such reporting requirements and obtaining such approvals. Each Holder and each
Beneficial Owner hereby agrees to file such reports and obtain such approvals to
the extent and in the form required by applicable laws and regulations as in
effect from time to time. Neither the Depositary, the Custodian, the Company or
any of their respective agents or affiliates shall be required to take any
actions whatsoever on behalf of Holders or Beneficial Owners to satisfy such
reporting requirements or obtain such regulatory approvals under applicable laws
and regulations.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Company intends to make a
distribution of a cash dividend or other cash distribution, the Company shall
give notice thereof to the Depositary at least ten (10) days prior to the
proposed record date for such distribution specifying, inter alia, the record
date applicable for determining the holders of Deposited Securities entitled to
receive such distribution. Upon timely receipt of such notice, the Depositary
shall establish an ADS Record Date upon the terms described in Section 4.9. Upon
receipt of confirmation from the Custodian of the receipt of any cash dividend
or other cash distribution on any Deposited Securities, or receives proceeds
from the sale of any Deposited Securities or any other entitlements held in
respect of Deposited Securities under the terms hereof, the Depositary will (i)
if at the time of receipt thereof any amounts received in a Foreign Currency
can, in the judgment of the Depositary (pursuant to Section 4.8), be converted
on a practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (on the terms described in Section 4.8), (ii) if applicable, and
unless previously established, establish the ADS Record Date upon the terms
described in Section 4.9, and (iii) distribute promptly the amount thus received
(net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date.
The Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is required
to withhold and does withhold from any cash dividend or other cash distribution
in respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the ADSs
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon request.
19
Section 4.2 Distribution in Shares. Whenever the Company intends to make a
distribution that consists of a dividend in, or free distribution of, Shares,
the Company shall give notice thereof to the Depositary at least twenty (20)
days prior to the proposed record date for such distribution specifying, inter
alia, the record date applicable to holders of Deposited Securities entitled to
receive such distribution. Upon the timely receipt of such notice from the
Company, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9. Upon receipt of confirmation from the Custodian of the
receipt of the Shares so distributed by the Company, the Depositary shall either
(i) subject to Section 5.9, distribute to the Holders as of the ADS Record Date
in proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, take all actions reasonably necessary so
that each ADS issued and outstanding after the ADS Record Date shall, to the
extent permissible by law, thenceforth also represent rights and interests in
the additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net of (a) the applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms described in Section 4.1. In the event that the
Depositary determines that any distribution in property (including Shares) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company in the fulfillment of its obligation
under Section 5.7, has furnished an opinion of U.S. counsel determining that
Shares must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective), the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of (a) taxes and (b) fees and charges of, and
expenses incurred by, the Depositary) to Holders entitled thereto upon the terms
described in Section 4.1. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Shares
in cash or in additional Shares, the Company shall give notice thereof to the
Depositary at least forty-five (45) days prior to the proposed record date for
such distribution specifying, inter alia, the record date applicable to holders
of Deposited Securities entitled to receive such elective distribution and
whether or not it wishes such elective distribution to be made available to
Holders of ADSs. Upon timely receipt of notice indicating that the Company
wishes such elective distribution to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such elective distribution available to the Holders of ADSs.
The Depositary shall make such elective distribution available to Holders only
if (i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
20
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall establish an ADS Record
Date on the terms described in Section 4.9 and, to the extent permitted by law,
distribute to the Holders, on the basis of the same determination as is made in
Brazil in respect of the Shares for which no election is made, either (X) cash
upon the terms described in Section 4.1 or (Y) additional ADSs representing such
additional Shares upon the terms described in Section 4.2. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9) and establish procedures to enable Holders
to elect the receipt of the proposed distribution in cash or in additional ADSs.
The Company shall assist the Depositary in establishing such procedures to the
extent necessary. If a Holder elects to receive the proposed distribution (X) in
cash, the distribution shall be made upon the terms described in Section 4.1, or
(Y) in ADSs, the distribution shall be made upon the terms described in Section
4.2. Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall give notice thereof to the Depositary at
least forty-five (45) days prior to the proposed record date for such
distribution specifying, inter alia, the record date applicable to holders of
Deposited Securities entitled to receive such distribution and stating whether
or not it wishes such rights to be made available to Holders of ADSs. Upon
timely receipt of a notice indicating that the Company wishes such rights to be
made available to Holders of ADSs, the Depositary shall consult with the Company
to determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such rights available to
the Holders. The Depositary shall make such rights available to Holders only if
(i) the Company shall have timely requested that such rights be made available
to Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied or if the Company requests that
the rights not be made available to Holders of ADSs, the Depositary shall
proceed with the sale of the rights as contemplated in Section 4.4(b) below. In
the event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in Section 4.9) and
establish procedures to (x) distribute rights to purchase additional ADSs (by
means of warrants or otherwise), (y) to enable the Holders to exercise such
rights (upon payment of the subscription price and of the applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z)
to deliver ADSs upon the valid exercise of such rights. The Company shall assist
the Depositary to the extent necessary in establishing such procedures. Nothing
herein shall obligate the Depositary to make available to the Holders a method
to exercise rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
21
satisfactory documentation within the terms of Section 5.7 or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall, after consultation with the Company, determine whether it is
lawful and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practicable. The Company shall assist the Depositary to the
extent necessary to determine such legality and practicability. The Depositary
shall, upon such sale, convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes) upon the terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to arrange
for the sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary opinion(s) of counsel for the
Company in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case satisfactory to the
Depositary, to the effect that the offering and sale of such securities to
Holders and Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
22
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary, after consultation with the Company, shall have determined that
such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary, after consultation
with the Company, shall sell or cause such property to be sold in a public or
private sale, at such place or places and upon such terms as it may deem
practicable and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS
Record Date upon the terms of Section 4.1. If the Depositary is unable to sell
such property, the Depositary may dispose of such property for the account of
the Holders in any way it deems reasonably practicable under the circumstances.
(d) Neither the Depositary nor the Company shall be responsible for (i)
any failure to determine whether it is lawful or practicable to make the
property described in this Section 4.5 available to Holders in general or any
Holders in particular, and (ii) any loss incurred in connection with the sale or
disposal of such property.
Section 4.6 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
timely notice thereof to the Depositary as is reasonably practicable having
regard to all applicable regulatory and other requirements to which the Company
23
is subject from time to time which notice shall set forth the particulars of the
proposed redemption. Upon timely receipt of (i) such notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7, and only if the Depositary shall have determined that such
proposed redemption is practicable, the Depositary shall provide to each Holder
a notice setting forth the intended exercise by the Company of the redemption
rights and any other particulars set forth in the Company's notice to the
Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders
thereof and the terms set forth in Sections 4.1 and 6.2. If less than all
outstanding Deposited Securities are redeemed, the ADSs to be retired will be
selected by lot or on a pro rata basis, as may be determined by the Depositary.
The redemption price per ADS shall be the dollar equivalent of the per share
amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s)
ratio) upon the redemption of the Deposited Securities represented by ADSs
(subject to the terms of Section 4.8 and the applicable fees and charges of, and
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Deposited Securities represented by each ADS redeemed.
Section 4.7 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, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall promptly
convert or cause to be converted, by sale or in any other manner that it may
determine, such Foreign Currency into Dollars, and shall distribute such Dollars
(net of any applicable fees, any reasonable and customary expenses incurred in
such conversion and any expenses incurred on behalf of the Holders in complying
with currency exchange control or other governmental requirements) in accordance
with the terms of the applicable sections of the Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a filing.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practicable or lawful, or
if any approval or license of any governmental authority or agency thereof that
24
is required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
Section 4.8 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (the "ADS Record Date") for the determination of the Holders of
ADS(s) who shall be entitled to receive such distribution, to give instructions
for the exercise of voting rights at any such meeting, to give or withhold such
consent, to receive such notice or solicitation or to otherwise take action, or
to exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any) set by the Company in Brazil. Subject
to applicable law and the provisions of Section 4.1 through 4.8 and to the other
terms and conditions of the Deposit Agreement, only the Holders of ADSs at the
close of business in New York on such ADS Record Date shall be entitled to
receive such distribution, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
Section 4.9 Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting at which the holders of
Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9. The Depositary shall, if requested in writing by
the Company in a timely manner (the Depositary having no obligation to take any
further action if the request shall not have been received by the Depositary at
least thirty (30) days prior to the date of such vote or meeting), and provided
no U.S. legal prohibitions exist, distribute to Holders as of the ADS Record
Date: (a) such notice of meeting or solicitation of consent or proxy, (b) a
statement that the Holders at the close of business on the ADS Record Date will
be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Bylaws of the Company and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Deposited Securities represented by
such Holder's ADSs, and (c) a brief statement as to the manner in which such
voting instructions may be given.
25
Notwithstanding anything contained in the Deposit Agreement or any ADR, the
Depositary may, to the extent not prohibited by law, regulations or applicable
stock exchange requirements and after consultation with the Company, in lieu of
distribution of the materials provided to the Depositary in connection with any
meeting of, or solicitation of consents or proxies from, holders of Deposited
Securities, distribute to the Holders a notice that provides Holders with a
means to retrieve such materials or receive such materials upon request (i.e.,
by reference to a website containing the materials for retrieval or a contact
for requesting copies of the materials).
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Deposited Securities. Upon the timely receipt
from a Holder of ADSs as of the ADS Record Date of voting instructions in the
manner specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of the Deposit
Agreement, Bylaws of the Company and the provisions of or governing the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder's ADSs in
accordance with such voting instructions.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary does not receive instructions from a Holder as of the
ADS Record Date on or before the date established by the Depositary for such
purpose, or if it timely receives voting instructions from a Holder which fail
to specify the manner in which the Depositary is to vote the Deposited
Securities represented by such Holder's ADSs, the Depositary will deem such
Holder (unless otherwise specified in the notice distributed to Holders) to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Company to vote the Deposited Securities, provided, however, that no such
discretionary proxy shall be given by the Depositary with respect to any matter
to be voted upon as to which the Company informs the Depositary that (i) the
Company does not wish such proxy to be given, (ii) substantial opposition
exists, or (iii) the rights of holders of Deposited Securities will be adversely
affected.
Notwithstanding anything contained in the Deposit Agreement or any ADR to
the contrary, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of holders
of Deposited Securities if the taking of such action would violate U.S. laws.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.10 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, 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 replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
26
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. In giving effect to such change, split-up,
cancellation, consolidation or other reclassification of Deposited Securities,
recapitalization, reorganization, merger, consolidation or sale of assets, the
Depositary may, with the Company's prior written approval, and shall, if the
Company shall so request in writing, subject to the terms of the Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory to
the Depositary that such actions are not in violation of any applicable laws or
regulations, (i) issue and deliver additional ADSs as in the case of a stock
dividend on the Shares, (ii) amend the Deposit Agreement and the applicable
ADRs, (iii) amend the applicable Registration Statement(s) on Form F-6 as filed
with the Commission in respect of the ADSs, (iv) call for the surrender of
outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions
as are appropriate to reflect the transaction with respect to the ADSs. The
Company agrees to, jointly with the Depositary, amend the Registration Statement
on Form F-6 as filed with the Commission to permit the issuance of such new form
of ADRs. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's prior written approval, and shall, if the Company
requests in writing, subject to receipt of an opinion of Company's counsel
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
and the Company shall not be responsible for (i) any failure to determine that
it may be lawful or feasible to make such securities available to Holders in
general or to any Holder in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or (iii) any liability to the
purchaser of such securities.
Section 4.11 Available Information. The Company publishes the information
contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act, on its internet
website or through an electronic information delivery system generally available
to the public in the Company's primary trading market. As of the date hereof the
Company's internet website is xxx.xxxxxxxxxxxxxxxxx.xxx.xx. The information so
published by the Company may not be in English, except that the Company is
required, in order to maintain its exemption from the Exchange Act reporting
obligations pursuant to Rule 12g3-2(b), to translate such information into
English to the extent contemplated in the instructions to Rule 12g3-2(e). The
information so published by the Company cannot be retrieved from the Commission
internet website, and cannot be inspected or copied at the public reference
facilities maintained by the Commission at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
Section 4.12 Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
provide or make available to Holders copies of such reports when furnished by
the Company pursuant to Section 5.6.
27
Section 4.13 List of Holders. Promptly upon written request by the
Company, the Depositary shall (i) furnish to it a list, as of a recent date, of
the names, addresses and holdings of ADSs of all Holders, and (ii) at the
expense of the Company, request a list of Beneficial Owners (to the extent
available).
Section 4.14 Taxation. The Depositary will, and will instruct the
Custodian to, timely forward to the Company or its agents such information from
its records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of ADSs may be required from time
to time, and in a timely manner, to file such proof of taxpayer status,
residence and beneficial ownership (as applicable), to execute such certificates
and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. The Depositary and the Company shall have no obligation or
liability to any person if any Holder or Beneficial Owner fails to provide such
information or if such information does not reach relevant tax authorities in
time for any Holder or Beneficial Owner to obtain the benefit of any tax
treatment. The Holders and Beneficial Owners shall indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
If the Company (or any of its authorized agents) withholds from any
distribution any amount on account of taxes or governmental charges, or pays any
other tax in respect of such distribution (i.e., stamp duty tax, capital gains
or other similar tax), the Company shall (and shall cause such authorized agent
to) remit as soon as practicable to the Depositary information about such taxes
or governmental charges withheld or paid, and, if so requested, the tax receipt
(or other proof of payment to the applicable governmental authority) therefor,
in each case, in a form satisfactory to the Depositary. The Depositary shall, to
the extent required by U.S. law, report to Holders any taxes withheld by it or
the Custodian, and, if such information is provided to it by the Company, any
taxes withheld by the Company. The Depositary and the Custodian shall not be
required to provide the Holders with any evidence of the remittance by the
Company (or its agents) of any taxes withheld, or of the payment of taxes by the
Company, except to the extent the evidence is provided by the Company to the
Depositary or the Custodian, as applicable. Neither the Depositary nor the
Custodian shall be liable for the failure by any Holder or Beneficial Owner to
obtain the benefits of credits on the basis of non-U.S. tax paid against such
Holder's or Beneficial Owner's income tax liability.
28
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company.
Neither the Depositary nor the Company shall incur any liability for any tax
consequences that may be incurred by Holders and Beneficial Owners on account of
their ownership of the ADSs, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Passive Foreign Investment Company" (in each case as defined in the U.S.
Internal Revenue Code and the regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of the Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the issuance and delivery of ADSs, the acceptance for
surrender of ADS(s) for the purpose of withdrawal of Deposited Securities, the
registration of issuances, cancellations, transfers, combinations and split-ups
of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued,
transferred, combined or split-up, in each case in accordance with the
provisions of the Deposit Agreement.
The Registrar shall keep books for the registration of ADSs in accordance
with the laws and regulations applicable to the Depositary and such books shall
at all reasonable times shall be open for inspection by the Company and by the
Holders of such ADSs, provided that such inspection shall not be, to the
Registrar's knowledge, for the purpose of communicating with Holders of such
ADSs in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the due performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Section 7.8.
If any ADSs are listed on one or more stock exchanges or automated
quotation systems in the United States, the Depositary shall act as Registrar or
appoint a Registrar or one or more co-registrars for registration of issuances,
cancellations, transfers, combinations and split-ups of ADSs and, if applicable,
to countersign ADRs evidencing the ADSs so issued, transferred, combined or
split-up, in accordance with any requirements of such exchanges or systems. Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary, with notice to the Company.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
29
any act or thing required by the terms of the Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
Brazil or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future, of the Bylaws of the Company or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Bylaws of the
Company or provisions of or governing Deposited Securities, (iii) for any action
or inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs, or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, the Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
Section 5.3 Standard of Care. The Company and the Depositary assume no
obligation and shall not be subject to any liability under the Deposit Agreement
or any ADRs to any Holder(s) or Beneficial Owner(s), except that the Company and
the Depositary agree to perform their respective obligations specifically set
forth in the Deposit Agreement or the applicable ADRs without negligence or bad
faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or authorized agents,
shall be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or in respect of the
ADSs, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel) and liability be furnished as often as may be required
(and no Custodian shall 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 or their respective agents shall be
liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
30
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of the Deposit
Agreement or for the failure or timeliness of any notice from the Company.
None of the Company, the Depositary or the Custodian shall be liable for
any action or failure to act by any Holder relating to the Holder's obligations
under any applicable Brazilian law or regulation relating to foreign investment
in Brazil in respect of a withdrawal or sale of Deposited Securities, including,
without limitation, any failure to comply with a requirement to register such
investment pursuant to the terms of any applicable Brazilian law or regulation
prior to such withdrawal or any failure to report foreign exchange transactions
to the BACEN, as the case may be. Each Holder will be responsible for the report
of any false information relating to foreign exchange transactions to the
Custodian or the BACEN, as the case may be, in connection with deposits or
withdrawals of Deposited Securities.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2), or (ii) the appointment by the Company of
a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such other information relating to ADSs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders.
31
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed Citibank
DTVM S.A., as Custodian for the purpose of the Deposit Agreement. The Custodian
or its successors in acting hereunder shall be subject at all times and in all
respects to the direction of the Depositary for the Shares for which the
Custodian acts as custodian and shall be responsible solely to it. If the
Custodian resigns or is discharged from its duties hereunder with respect to any
Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary shall after consultation with the Company, promptly
appoint a substitute custodian that is organized under the laws of Brazil. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. The Depositary shall use
reasonable commercial efforts to ensure that at all times there is a Custodian
hereunder. Whenever the Depositary determines, in its discretion, that it is
appropriate to do so, it may discharge the Custodian with respect to any
Deposited Securities and appoint a substitute custodian, which shall thereafter
be Custodian hereunder with respect to the Deposited Securities. Immediately
upon any such change, the Depositary shall give notice thereof in writing to all
Holders of ADSs, each other Custodian and the Company.
Citibank, N.A. may at any time act as Custodian of the Deposited
Securities pursuant to the Deposit Agreement, in which case any reference to
Custodian shall mean Citibank, N.A. solely in its capacity as Custodian pursuant
to the Deposit Agreement. Notwithstanding anything contained in the Deposit
Agreement or any ADR, the Depositary shall not be obligated to give notice to
the Company, any Holders of ADSs or any other Custodian of its acting as
Custodian pursuant to the Deposit Agreement.
Upon the appointment of any successor depositary, the Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
the Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Bylaws of the Company that may be relevant or
pertain to such notice of meeting or be the subject of a vote thereat.
32
The Company will also transmit to the Depositary English-language versions
of the other notices, reports and communications which are made generally
available by the Company to holders of its Shares or other Deposited Securities.
The Depositary shall arrange, at the request of the Company and at the Company's
expense, to provide copies thereof to all Holders or make such notices, reports
and other communications available to all Holders on a basis similar to that for
holders of Shares or other Deposited Securities or on such other basis as the
Company may advise the Depositary or as may be required by any applicable law,
regulation or stock exchange requirement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the ADSs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance or assumption of
securities convertible into or exchangeable for Shares, (iv) an issuance of
rights to subscribe for securities convertible into or exchangeable for Shares,
(v) an elective dividend of cash or Shares, (vi) a redemption of Deposited
Securities, (vii) a meeting of holders of Deposited Securities, or solicitation
of consents or proxies, relating to any reclassification of securities, merger
or consolidation or transfer of assets, or (viii) any assumption,
reclassification, recapitalization, reorganization, merger, consolidation or
sale of assets which affects the Deposited Securities, it will obtain U.S. legal
advice and take all steps necessary to ensure that the proposed transaction does
not violate the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act and the securities laws of the states of the
U.S.). In support of the foregoing, the Company will furnish to the Depositary
(a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether such transaction (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of Brazilian
counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of Brazil and (2) all
requisite regulatory consents and approvals have been obtained in Brazil except,
as the case may be, for the approval of the ADR program by the CVM. If the
filing of a registration statement is required, the Depositary shall not have
any obligation to proceed with the transaction unless it shall have received
evidence reasonably satisfactory to it that such registration statement has been
declared effective. If, being advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in the Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act. The Company
agrees with the Depositary that neither the Company nor any of its Affiliates
will at any time (i) deposit any Shares or other Deposited Securities, either
upon original issuance or upon a sale of Shares or other Deposited Securities
previously issued and reacquired by the Company or by any such Affiliate, or
(ii) issue additional Shares, rights to subscribe for such Shares, securities
convertible into or exchangeable for Shares or rights to subscribe for such
33
securities, unless such transaction and the securities issuable in such
transaction do not violate the registration provisions of the Securities Act, or
any other applicable laws (including, without limitation, the Investment Company
Act of 1940, as amended, the Exchange Act and the securities laws of the states
of the U.S.).
Notwithstanding anything else contained in the Deposit Agreement, nothing
in the Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, authorized agents and Affiliates
against, and hold each of them harmless from, any direct loss, liability, tax,
charge or expense of any kind whatsoever (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of acts performed
or omitted by the Depositary under the terms hereof due to the negligence or bad
faith of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with the Deposit Agreement, the ADRs, the ADSs, the Shares, or any
Deposited Securities, in any such case (i) by the Depositary, the Custodian or
any of their respective directors, officers, employees, agents and Affiliates,
except to the extent such loss, liability, tax, charge or expense is due to the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, officers, employees, agents and Affiliates, except to the extent any
such loss, liability, tax, charge or expense arises out of information relating
to the Depositary or any Custodian, as applicable, furnished to the Company by
the Depositary in writing and not materially changed or altered by the Company.
The obligations set forth in this Section shall survive the termination of
the Deposit Agreement and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify in writing the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the prior written consent of the indemnifying person, which consent
shall not be unreasonably withheld.
34
Section 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS Record Date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS Record Date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
agree from time to time. The Company shall pay to the Depositary such fees and
charges and reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time. Responsibility for
payment of such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
35
Section 5.10 Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 and
(ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs, and (z) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs and
Shares involved in Pre-Release Transactions with any one person on a
case-by-case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder (except under the circumstances contemplated in Section 2.14)
and, to the extent practicable, shall require each of such persons to represent
in writing that such person will not deposit Restricted Securities hereunder
(except under the circumstances contemplated in Section 2.14).
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable law, the ADRs outstanding at any time, the
provisions of the Deposit Agreement and the form of ADR attached hereto and to
be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
36
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. Notice of
any amendment to the Deposit Agreement or any ADR shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders and Beneficial Owners to retrieve or receive the
text of such amendment (i.e., upon retrieval from the Commission's, the
Depositary's or the Company's website or upon request from the Depositary). The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
settled solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADSs, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and the ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADS and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and any ADRs at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and any ADRs in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, rules or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by distributing notice
of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and, in either case, a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4 of the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by distributing
notice of such termination to the Holders of all ADSs then outstanding at least
thirty (30) days prior to the date fixed in such notice for such termination.
The date so fixed for termination of the Deposit Agreement in any termination
notice so distributed by the Depositary to the Holders of ADSs is referred to as
the "Termination Date". Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement.
37
If any ADSs shall remain outstanding after the Termination Date, the
Registrar and the Depositary shall not, after the Termination Date, have any
obligation to perform any further acts under the Deposit Agreement, except that
the Depositary shall, subject, in each case, to the terms and conditions of the
Deposit Agreement, continue to (i) collect dividends and other distributions
pertaining to Deposited Securities, (ii) sell securities and other property
received in respect of Deposited Securities, (iii) deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any securities or other property, in
exchange for ADSs surrendered to the Depositary (after deducting, or charging,
as the case may be, in each case, the fees and charges of, and expenses incurred
by, the Depositary, and all applicable taxes or governmental charges for the
account of the Holders and Beneficial Owners, in each case upon the terms set
forth in Section 5.9 of the Deposit Agreement), and (iv) take such actions as
may be required under applicable law in connection with its role as Depositary
under the Deposit Agreement.
At any time after the Termination Date, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and shall after such
sale hold un-invested the net proceeds of such sale, together with any other
cash then held by it under the Deposit Agreement, in an un-segregated account
and without liability for interest, for the pro - rata benefit of the Holders
whose ADSs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
except (i) to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental
charges for the account of the Holders and Beneficial Owners, in each case upon
the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be
required at law in connection with the termination of the Deposit Agreement.
After the Termination Date, the Company shall be discharged from all obligations
under the Deposit Agreement, except for its obligations to the Depositary under
Sections 5.8, 5.9 and 7.6 of the Deposit Agreement. The obligations under the
terms of the Deposit Agreement of Holders and Beneficial Owners of ADSs
outstanding as of the Termination Date shall survive the Termination Date and
shall be discharged only when the applicable ADSs are presented by their Holders
to the Depositary for cancellation under the terms of the Deposit Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. The Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of the Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. The Deposit Agreement is for the
exclusive benefit of the parties hereto (and their successors) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
38
other person, except to the extent specifically set forth in the Deposit
Agreement. Nothing in the Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in the Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, and (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in the Deposit Agreement or in the ADRs should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of ADSs issued hereunder shall
be parties to the Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of any ADR evidencing their ADSs by acceptance thereof or
any beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter
personally delivered or sent by mail or air courier, addressed to Equatorial
Energia S.A., Xx. Xxxxxx xx Xxxxxxxx, 000, Xxx xx Xxxxxxx, Xxxxxx, Attention:
Xxxxxx Xxxxxxx Xxxxx Piani (facsimile number: 55 21 3206-6601), or to any other
address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, U.S.A., Attention: Depositary Receipts Department
(facsimile number 000 000 0000), or to any other address which the Depositary
may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary a request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of notification as
an acceptable means of notification under the terms of the Deposit Agreement, by
means of electronic messaging addressed for delivery to the e-mail address
designated by the Holder for such purpose. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of the Deposit Agreement.
Failure to notify a Holder or any defect in the notification to a Holder shall
not affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
39
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary, or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.6 Governing Law and Jurisdiction. The Deposit Agreement and the
ADRs shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York applicable to contracts made and to be performed in that
State. Notwithstanding anything contained in the Deposit Agreement, any ADR or
any present or future provisions of the laws of the State of New York, the
rights of holders of Shares and of any other Deposited Securities and the
obligations and duties of the Company in respect of the holders of Shares and
other Deposited Securities, as such, shall be governed by the laws of Brazil
(or, if applicable, such other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with the Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Law Debenture Corporate Services
Inc. (the "Agent") now at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 as
its authorized agent to receive and accept for and on its behalf, and on behalf
of its properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit, action
or proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in New York on the terms and for the
purposes of this Section 7.6 reasonably satisfactory to the Depositary. The
Company further hereby irrevocably consents and agrees to the service of any and
all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.5. The Company agrees that
the failure of the Agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
40
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under the Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, and agrees not to plead or claim, any right of immunity from
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any ADR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of the Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4, the
Deposit Agreement may not be assigned by either the Company or the Depositary,
except (a) upon the written consent of the Company or the Depositary (as
applicable), or (b) in connection with any reorganization, merger,
consolidation, sale of assets or other forms of business combination which
results in substantially all assets being transferred to the successor entity.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding anything
in the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
41
Section 7.9 Titles and References.
(a) Deposit Agreement. All references in the Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other subdivisions of the Deposit
Agreement unless expressly provided otherwise. The words "the Deposit
Agreement", "herein", "hereof", "hereby", "hereunder", and words of similar
import refer to the Deposit Agreement as a whole as in effect at the relevant
time between the Company, the Depositary and the Holders and Beneficial Owners
of ADSs and not to any particular subdivision unless expressly so limited.
Pronouns in masculine, feminine and neuter gender shall be construed to include
any other gender, and words in the singular form shall be construed to include
the plural and vice versa unless the context otherwise requires. Titles to
sections of the Deposit Agreement are included for convenience only and shall be
disregarded in construing the language contained in the Deposit Agreement.
References to "applicable laws and regulations" shall refer to laws and
regulations applicable to ADRs, ADSs or Deposited Securities as in effect at the
relevant time of determination, unless otherwise required by law or regulation.
(b) ADRs. All references in any ADR(s) to paragraphs, exhibits, articles,
sections, subsections, and other subdivisions refer to the paragraphs, exhibits,
articles, sections, subsections and other subdivisions of the ADR(s) in question
unless expressly provided otherwise. The words "the Receipt", "the ADR",
"herein", "hereof", "hereby", "hereunder", and words of similar import used in
any ADR refer to the ADR as a whole and as in effect at the relevant time, and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender in any ADR shall be construed to include
any other gender, and words in the singular form shall be construed to include
the plural and vice versa unless the context otherwise requires. Titles to
paragraphs of any ADR are included for convenience only and shall be disregarded
in construing the language contained in the ADR. References to "applicable laws
and regulations" shall refer to laws and regulations applicable to ADRs, ADSs or
Deposited Securities as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
42
IN WITNESS WHEREOF, EQUATORIAL ENERGIA S.A. and CITIBANK, N.A. have duly
executed the Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
EQUATORIAL ENERGIA S.A.
By:
-----------------------
Name:
Title:
CITIBANK, N.A.
By:
-----------------------
Name:
Title:
43
EXHIBIT A
[FORM OF ADR]
Number CUSIP NUMBER: _______
_____________
American Depositary Shares (each
American Depositary Share
representing one (1) fully paid
ordinary share of Equatorial
Energia S.A.
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
EQUATORIAL ENERGIA S.A.
(Incorporated under the laws of the Federative Republic of Brazil)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, including evidence of rights to receive such ordinary shares (the
"Shares"), of Equatorial Energia S.A., a corporation incorporated under the laws
of the Federative Republic of Brazil (the "Company"). As of the date of the
Deposit Agreement (as hereinafter defined), each ADS represents one (1) Share
deposited under the Deposit Agreement with the Custodian, which at the date of
execution of the Deposit Agreement is Citibank DTVM S.A. (the "Custodian"). The
ADS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV and
VI of the Deposit Agreement. The Depositary's Principal Office is located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Deposit Agreement, dated as of [DATE],
2008 (as amended and supplemented from time to time, the "Deposit Agreement"),
A-1
by and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of ADSs issued thereunder. The Deposit Agreement sets forth
the rights and obligations of Holders and Beneficial Owners of ADSs 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 Principal Office of the Depositary and with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Bylaws of the Company (as in
effect on the date of the signing of the Deposit Agreement) and are qualified by
and subject to the detailed provisions of the Deposit Agreement and the Bylaws,
to which reference is hereby made. All capitalized terms used herein which are
not otherwise defined herein shall have the meanings ascribed thereto in the
Deposit Agreement. The Depositary makes no representation or warranty as to the
validity or worth of the Deposited Securities. The Depositary has made
arrangements for the acceptance of the ADSs into DTC. Each Beneficial Owner of
ADSs held through DTC must rely on the procedures of DTC and the DTC
Participants to exercise and be entitled to any rights attributable to such
ADSs.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if applicable and so required by the Depositary, this
ADR Delivered to the Depositary for such purpose has been properly endorsed in
blank or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered 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 the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit
B to, the Deposit Agreement) have been paid, subject, however, in each case, to
the terms and conditions of this ADR evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company's Bylaws, and of any applicable laws and the
rules of the Companhia Brasileira de Liquidacao e Custodia S.A. ("CBLC"), and to
any provisions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
A-2
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall promptly cancel the ADSs Delivered to it (and, if
applicable, the ADRs evidencing the ADSs so Delivered), (ii) shall direct the
Registrar to record the cancellation of the ADSs so Delivered on the books
maintained for such purpose, and (iii) shall direct the Custodian to Deliver
(without unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this ADR evidencing the ADS so
cancelled, of the Bylaws of the Company, of any applicable laws and of the rules
of the CBLC, and to the terms and conditions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one (1) Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
and (b) taxes withheld) to the person surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs represented by this ADR, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR canceled by the Depositary, (y) cause the Registrar to
countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order of
the person entitled thereto, if each of the following conditions has been
satisfied: (i) this ADR has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
A-3
the purpose of effecting a transfer thereof, (ii) this surrendered ADR has been
properly endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this surrendered ADR has been duly stamped (if required by the laws of the
State of New York or of the United States), and (iv) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes
and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this ADR, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR canceled by the Depositary, (y) cause the Registrar to countersign such
new ADRs, and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) this ADR
has been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting a
split-up or combination hereof, and (ii) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and government
charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit
Agreement) have been paid, subject, however, in each case, to the terms and
conditions of this ADR, of the Deposit Agreement and of applicable law, in each
case as in effect at the time thereof.
The Depositary, upon prior notification to the Company, may appoint one or
more co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of ADRs at designated transfer offices on behalf of the Depositary. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by Holders
or persons entitled to such ADRs and will be entitled to protection and
indemnity to the same extent as the Depositary. Such co-transfer agents may be
removed and substitutes appointed by the Depositary upon prior notification to
the Company. Each co-transfer agent appointed under Section 2.6 of the Deposit
Agreement (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of the Deposit Agreement.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B to the Deposit Agreement and
in this ADR, (ii) the production of proof satisfactory to it as to the identity
and genuineness of any signature or any other matter contemplated in Section 3.1
of the Deposit Agreement, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or to the
withdrawal of Deposited Securities and (B) such reasonable regulations as the
Depositary and the Company may establish consistent with the provisions of this
ADR if applicable, the Deposit Agreement and applicable law.
A-4
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADSs in particular
instances may be refused, or the registration of transfers of ADSs generally may
be suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law or
regulation, any government or governmental body or commission or any securities
exchange on which the Shares or ADSs are listed, or under any provision of the
Deposit Agreement or this ADR, if applicable, or under any provision of, or
governing, the Deposited Securities, or because of a meeting of shareholders of
the Company or for any other reason, subject, in all cases to paragraph (24) and
Section 7.8 of the Deposit Agreement.
Notwithstanding any provision of the Deposit Agreement or this ADR to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities associated therewith at any time subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the ADSs or the withdrawal of the Deposited Securities,
and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of
the General Instructions to Form F-6 (as such General Instructions may be
amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable Brazilian law, the rules and requirements of the BACEN,
the CVM, the BOVESPA, the BOVESPA's Novo Xxxxxxx listing segment and of any
other stock exchange on which Shares or ADSs are, or will be, registered, traded
or listed, or the Bylaws of the Company, which are made to provide information,
inter alia, as to the capacity in which such Holder or Beneficial Owner owns
ADSs (and Shares, as the case may be) and regarding the identity of any other
person(s) interested in such ADSs and the nature of such interest and various
other matters, whether or not they are Holders and/or Beneficial Owners at the
time of such request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company and at the Company's expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
The Depositary and the Company shall comply with paragraph 3, article 3 of
Regulation Annex V to Resolution 1.289.87 (as published in Resolution 1.927/92)
of the Brazilian Monetary Council, and agree to furnish the Brazilian Securities
and Exchange Commission (Commissao de Valores Mobiliarios, also known as "CVM")
and the Brazilian Central Bank (Banco Central do Brasil, also known as "BACEN"),
whenever required, information or documents related to the approved ADR program,
the Deposited Securities and distributions thereon.
A-5
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable law or the Bylaws of the Company. The Company may also restrict, in
such manner as it deems appropriate, transfers of the ADSs where such transfer
may result in the total number of Shares represented by the ADSs owned by a
single Holder or Beneficial Owner to exceed any such limits. The Company may, in
its sole discretion but subject to applicable law, instruct the Depositary to
take action with respect to the ownership interest of any Holder or Beneficial
Owner in excess of the limits set forth in the preceding sentence, including but
not limited to, the imposition of restrictions on the transfer of ADSs, the
removal or limitation of voting rights or mandatory sale or disposition on
behalf of a Holder or Beneficial Owner of the Shares represented by the ADSs
held by such Holder or Beneficial Owner in excess of such limitations, if and to
the extent such disposition is permitted by applicable law and the Bylaws of the
Company. Nothing herein or in the Deposit Agreement shall be interpreted as
obligating the Depositary or the Company to ensure compliance with the ownership
restrictions described herein or in Section 3.5 of the Deposit Agreement.
Applicable laws and regulations, including those of the BACEN, the CVM, the
BOVESPA and BOVESPA's Novo Xxxxxxx listing segment may require holders and
beneficial owners of Shares, including the Holders and Beneficial Owners of
ADSs, to satisfy reporting requirements and obtain regulatory approvals in
certain circumstances. Holders and Beneficial Owners of ADSs are solely
responsible for complying with such reporting requirements and obtaining such
approvals. Each Holder and each Beneficial Owner hereby agrees to file such
reports and obtain such approvals to the extent and in the form required by
applicable laws and regulations as in effect from time to time. Neither the
Depositary, the Custodian, the Company or any of their respective agents or
affiliates shall be required to take any actions whatsoever on behalf of Holders
or Beneficial Owners to satisfy such reporting requirements or obtain such
regulatory approvals under applicable laws and regulations.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian and/or
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or other governmental charges, the Holder and the Beneficial Owner
hereof remaining liable for any deficiency. The Custodian may refuse the deposit
of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer of ADSs, register the split-up or combination of ADRs and (subject
to paragraph (24) hereof and Section 7.8 of the Deposit Agreement) the
withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and hold each of them harmless from, any
claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
A-6
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, fully paid, non-assessable and legally obtained by such person,
(ii) all preemptive (and similar) rights, if any, with respect to such Shares
have been validly waived or exercised, (iii) the person making such deposit is
duly authorized so to do, (iv) the Shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge, mortgage or adverse
claim, and (v) the Shares presented for deposit are not, and the ADSs issuable
upon such deposit will not be, Restricted Securities (except as contemplated in
Section 2.14 of the Deposit Agreement), and (vi) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Shares Registrar) as the Depositary or the Custodian may deem
reasonably necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under the
Deposit Agreement and the applicable ADR(s). The Depositary and the Registrar,
as applicable, may withhold the execution or delivery or registration of
transfer of any ADR or ADS or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof or, to the extent not limited
by paragraph (24) and Section 7.8 of the Deposit Agreement, the delivery of any
Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made or such other
information or documentation are provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval, or written representations or warranties which it
receives from Holders and Beneficial Owners, and (ii) any other information or
documents which the Company may reasonably request and which the Depositary
shall request and receive from any Holder or Beneficial Owner or any person
presenting Shares for deposit or ADSs for cancellation, transfer or withdrawal.
Nothing herein shall obligate the Depositary to (i) obtain any information for
the Company if not provided by the Holders or Beneficial Owners, or (ii) verify
or vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
A-7
(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares (excluding issuances as
a result of distributions described in paragraph (iv) below),
a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction
thereof) so issued under the terms of the Deposit Agreement;
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof)
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADSs, a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., sale of rights and other entitlements);
(iv) Stock Distribution /Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for (a) stock dividends or other free
stock distributions or (b) exercise of rights to purchase
additional ADSs;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of securities other than ADSs or rights
to purchase additional ADSs (i.e., spin-off shares); and
(vi) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
on the applicable record date(s) established by the
Depositary.
Holders, Beneficial Owners, persons depositing Shares and persons
surrendering ADSs for cancellation and for the purpose of withdrawing Deposited
Securities shall be responsible for the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
A-8
(c) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(f) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
All fees and charges may, at any time and from time to time, be changed by
agreement between the Depositary and Company but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR and as contemplated in Section 6.1 of
the Deposit Agreement. The Depositary will provide, without charge, a copy of
its latest fee schedule to anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS Record Date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS Record Date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
A-9
agree from time to time. The Company shall pay to the Depositary such fees and
charges and reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time. Responsibility for
payment of such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 of the Deposit Agreement, such right
shall extend for those fees, charges and expenses incurred prior to the
effectiveness of such resignation or removal.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable upon
the same terms as a certificated security under the laws of the State of New
York, provided that, in the case of Certificated ADSs, such ADR has been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of this ADR (that is, the person in whose name this
ADR is registered on the books of the Depositary) as the absolute owner thereof
for all purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless such holder is the
Holder of this ADR registered on the books of the Depositary or, in the case of
a Beneficial Owner, such Beneficial Owner or the Beneficial Owner's
representative is the Holder registered on the books of the Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly-authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. An ADR bearing the facsimile
signature of a duly-authorized signatory of the Depositary or the Registrar, who
at the time of signature was a duly authorized signatory of the Depositary or
the Registrar, as the case may be, shall bind the Depositary, notwithstanding
the fact that such signatory has ceased to be so authorized prior to the
delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company publishes the information contemplated in Rule 12g3-2(b)(1)(iii) under
the Exchange Act, on its internet website or through an electronic information
delivery system generally available to the public in the Company's primary
trading market. As of the date hereof the Company's internet website is
xxx.xxxxxxxxxxxxxxxxx.xxx.xx. The information so published by the Company may
A-10
not be in English, except that the Company is required, in order to maintain its
exemption from the Exchange Act reporting obligations pursuant to Rule
12g3-2(b), to translate such information into English to the extent contemplated
in the instructions to Rule 12g3-2(e). The information so published by the
Company cannot be retrieved from the Commission internet website, and cannot can
be inspected or copied at public reference facilities maintained by the
Commission at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. The Depositary shall
make available for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also provide or make available to Holders copies of such
reports when furnished by the Company pursuant to Section 5.6 of the Deposit
Agreement.
The Registrar shall keep books for the registration of ADSs in accordance
with the laws and regulations applicable to the Depositary and such books shall
at all reasonable times shall be open for inspection by the Company and by the
Holders of such ADSs, provided that such inspection shall not be, to the
Registrar's knowledge, for the purpose of communicating with Holders of such
ADSs in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, at
any time or from time to time, when deemed necessary or advisable by it in good
faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to paragraph
(24) and Section 7.8 of the Deposit Agreement.
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: __________________________ By: __________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-11
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Company intends to make a distribution of a cash dividend or other cash
distribution, the Company shall give notice thereof to the Depositary at least
ten (10) days prior to the proposed record date for such distribution
specifying, inter alia, the record date applicable for determining the holders
of Deposited Securities entitled to receive such distribution. Upon timely
receipt of such notice, the Depositary shall establish an ADS Record Date upon
the terms described in Section 4.9 of the Deposit Agreement. Upon receipt of
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Deposited Securities or of any other entitlements held in respect of
Deposited Securities under the terms of the Deposit Agreement, the Depositary
will (i) if at the time of receipt thereof any amounts received in a Foreign
Currency can, in the judgment of the Depositary (upon the terms of Section 4.8
of the Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of
Section 4.8 of the Deposit Agreement), (ii) if applicable and unless previously
established, establish the ADS Record Date upon the terms described in Section
4.9 of the Deposit Agreement, and (iii) distribute promptly the amount thus
received (net of (a) applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the
ADS Record Date in proportion to the number of ADSs held as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs outstanding at
the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company, the
Custodian or the Depositary to the relevant governmental authority. Evidence of
payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request.
Whenever the Company intends to make a distribution that consists of a
dividend in, or free distribution of, Shares, the Company shall give notice
thereof to the Depositary at least twenty (20) days prior to the proposed record
date for such distribution specifying, inter alia, the record date applicable to
holders of Deposited Securities entitled to receive such distribution. Upon the
timely receipt of such notice from the Company, the Depositary shall establish
the ADS Record Date upon the terms described in Section 4.9 of the Deposit
Agreement. Upon receipt of confirmation from the Custodian of the receipt of the
Shares so distributed by the Company, the Depositary shall either (i) subject to
A-12
Section 5.9 of the Deposit Agreement, distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in the aggregate the number of Shares received
as such dividend, or free distribution, subject to the other terms of the
Deposit Agreement (including, without limitation, (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, take all actions necessary so that each
ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes). In lieu of delivering fractional
ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may
be, represented by the aggregate of such fractions and distribute the net
proceeds upon the terms set forth in Section 4.1 of the Deposit Agreement. In
the event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company in the fulfillment of
its obligations under Section 5.7 of the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of (a) taxes
and (b) fees and charges of, and the expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of Section 4.1 of the Deposit Agreement.
The Depositary shall hold and/or distribute any unsold balance of such property
in accordance with the provisions of the Deposit Agreement.
Whenever the Company intends to make a distribution payable at the
election of the holders of Shares in cash or in additional Shares, the Company
shall give notice thereof to the Depositary at least forty-five (45) days prior
to the proposed record date for such distribution specifying, inter alia, the
record date applicable to holders of Deposited Securities entitled to receive
such elective distribution and whether or not it wishes such elective
distribution to be made available to Holders of ADSs. Upon timely receipt of
notice indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall make such
elective distribution available to Holders only if (i) the Company shall have
timely requested that the elective distribution be made available to Holders,
(ii) the Depositary shall have determined that such distribution is reasonably
practicable and (iii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7 of the Deposit Agreement. If the
above conditions are not satisfied, the Depositary shall establish an ADS Record
Date on the terms described in Section 4.9 of the Deposit Agreement and, to the
extent permitted by law, distribute to the Holders, on the basis of the same
determination as is made in Brazil in respect of the Shares for which no
election is made, either (X) cash upon the terms described in Section 4.1 of the
Deposit Agreement or (Y) additional ADSs representing such additional Shares
upon the terms described in Section 4.2 of the Deposit Agreement. If the above
conditions are satisfied, the Depositary shall establish an ADS Record Date (on
the terms described in Section 4.9 of the Deposit Agreement) and establish
A-13
procedures to enable Holders to elect the receipt of the proposed distribution
in cash or in additional ADSs. The Company shall assist the Depositary in
establishing such procedures to the extent necessary. If a Holder elects to
receive the proposed distribution (X) in cash, the distribution shall be made
upon the terms described in Section 4.1 of the Deposit Agreement, or (Y) in
ADSs, the distribution shall be made upon the terms described in Section 4.2 of
the Deposit Agreement. Nothing herein shall obligate the Depositary to make
available to Holders a method to receive the elective distribution in Shares
(rather than ADSs). There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Whenever the Company intends to distribute to the holders of the Deposited
Securities rights to subscribe for additional Shares, the Company shall give
notice thereof to the Depositary at least forty-five (45) days prior to the
proposed record date for such distribution specifying, inter alia, the record
date applicable to holders of Deposited Securities entitled to receive such
distribution and stating whether or not it wishes such rights to be made
available to Holders of ADSs. Upon timely receipt of a notice indicating that
the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to Holders only if (i) the Company shall have timely
requested that such rights be made available to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7
of the Deposit Agreement, and (iii) the Depositary shall have determined that
such distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied or if the Company requests that the
rights not be made available to Holders of ADSs, the Depositary shall proceed
with the sale of the rights as contemplated in Section 4.4(b)of the Deposit
Agreement. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.9 of the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise such rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise
of such rights. The Company shall assist the Depositary to the extent necessary
in establishing such procedures. Nothing herein or in the Deposit Agreement
shall obligate the Depositary to make available to the Holders a method to
exercise rights to subscribe for Shares (rather than ADSs). If (i) the Company
does not timely request the Depositary to make the rights available to Holders
or requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation within the terms of
Section 5,7 of the Deposit Agreement or determines it is not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall, after consultation with the Company, determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem practicable. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
A-14
upon the terms hereof and of Section 4.1 of the Deposit Agreement. If the
Depositary is unable to make any rights available to Holders upon the terms
described in Section 4.4(a) of the Deposit Agreement or to arrange for the sale
of the rights upon the terms described in Section 4.4(b) of the Deposit
Agreement, the Depositary shall allow such rights to lapse. The Depositary shall
not be responsible for (i) any failure to determine that it may be lawful or
practicable to make such rights available to Holders in general or any Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or exercise, or (iii) the content of any materials forwarded to
the ADS Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in Section 4.4 of the Deposit Agreement
to the contrary, if registration (under the Securities Act or any other
applicable law) of the rights or the securities to which any rights relate may
be required in order for the Company to offer such rights or such securities to
Holders and to sell the securities represented by such rights, the Depositary
will not distribute such rights to the Holders (i) unless and until a
registration statement under the Securities Act (or other applicable law)
covering such offering is in effect or (ii) unless the Company furnishes the
Depositary opinion(s) of counsel for the Company in the United States and
counsel to the Company in any other applicable country in which rights would be
distributed, in each case satisfactory to the Depositary, to the effect that the
offering and sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration under, the provisions of the Securities Act
or any other applicable laws. In the event that the Company, the Depositary or
the Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders of ADSs
representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein or in the Deposit Agreement shall obligate the Company to file
any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, and (iii) the Depositary, after consultation with the
Company, shall have determined that such distribution is reasonably practicable.
A-15
Upon receipt of satisfactory documentation and the request of the Company
to distribute property to Holders of ADSs and after making the requisite
determinations, the Depositary shall distribute the property so received to the
Holders of record, as of the ADS Record Date, in proportion to the number of
ADSs held by them respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to Holders,
(ii) the Depositary does not receive satisfactory documentation within the terms
of Section 5.7 of the Deposit Agreement, or (iii) the Depositary determines that
all or a portion of such distribution is not reasonably practicable, the
Depositary, after consultation with the Company, shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem practicable and shall (i) cause the proceeds of
such sale, if any, to be converted into Dollars and (ii) distribute the proceeds
of such conversion received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders as of the ADS Record Date upon the terms of Section 4.1 of the Deposit
Agreement. If the Depositary is unable to sell such property, the Depositary may
dispose of such property for the account of the Holders in any way it deems
reasonably practicable under the circumstances. Neither the Depositary nor the
Company shall be responsible for (i) any failure to determine whether it is
lawful or practicable to make the property described in Section 4.5 of the
Deposit Agreement available to Holders in general or any Holders in particular,
and (ii) any loss incurred in connection with the sale or disposal of such
property.
(15) Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
timely notice thereof to the Depositary as is reasonably practicable having
regard to all applicable regulatory and other requirements to which the Company
is subject from time to time which notice shall set forth the particulars of the
proposed redemption. Upon timely receipt of (i) such notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7 of the Deposit Agreement, and only if the Depositary shall
have determined that such proposed redemption is practicable, the Depositary
shall provide to each Holder a notice setting forth the intended exercise by the
Company of the redemption rights and any other particulars set forth in the
Company's notice to the Depositary. The Depositary shall instruct the Custodian
to present to the Company the Deposited Securities in respect of which
redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and expenses incurred by, the
A-16
Depositary, and (b) taxes), retire ADSs and cancel ADRs, if applicable, upon
delivery of such ADSs by Holders thereof upon the terms set forth in Sections
4.1 and 6.2 of the Deposit Agreement. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary. The redemption price per
ADS shall be the dollar equivalent of the per share amount received by the
Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the
redemption of the Deposited Securities represented by ADSs (subject to the terms
of Section 4.8 of the Deposit Agreement and the applicable fees and charges of,
and expenses incurred by, the Depositary, and taxes) multiplied by the number of
Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. The
Depositary shall make reasonable efforts to establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in Brazil. Subject to applicable law and the terms
and conditions of this ADR and Sections 4.1 through 4.8 and to the other terms
and conditions of the Deposit Agreement, only the Holders of ADSs at the close
of business in New York on such ADS Record Date shall be entitled to receive
such distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
from the Company of notice of any meeting at which the holders of Deposited
Securities are entitled to vote, or of solicitation of consents or proxies from
holders of Deposited Securities, the Depositary shall fix the ADS Record Date in
respect of such meeting or solicitation of consent or proxy in accordance with
Section 4.9 of the Deposit Agreement. The Depositary shall, if requested in
writing by the Company in a timely manner (the Depositary having no obligation
to take any further action if the request shall not have been received by the
Depositary at least thirty (30) days prior to the date of such vote or meeting),
and provided no U.S. legal prohibitions exist, distribute to Holders as of the
ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy,
(b) a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable law, the provisions of the Deposit
Agreement, the Company's Bylaws and the provisions of or governing Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by such
Holder's ADSs and (c) a brief statement as to the manner in which such voting
instructions may be given.
A-17
Notwithstanding anything contained in the Deposit Agreement or any ADR, the
Depositary may, to the extent not prohibited by law, regulations or applicable
stock exchange requirements and after consultation with the Company, in lieu of
distribution of the materials provided to the Depositary in connection with any
meeting of, or solicitation of consents or proxies from, holders of Deposited
Securities, distribute to the Holders a notice that provides Holders with a
means to retrieve such materials or receive such materials upon request (i.e.,
by reference to a website containing the materials for retrieval or a contact
for requesting copies of the materials).
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Deposited Securities. Upon the timely receipt
from a Holder of ADSs as of the ADS Record Date of voting instructions in the
manner specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law and the provisions of the Deposit
Agreement, Bylaws of the Company and the provisions of the Deposited Securities,
to vote, or cause the Custodian to vote, the Deposited Securities (in person or
by proxy) represented by such Holder's ADSs in accordance with such voting
instructions.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary does not receive instructions from a Holder as of the
ADS Record Date on or before the date established by the Depositary for such
purpose, or if it timely receives voting instructions from a Holder which fail
to specify the manner in which the Depositary is to vote the Deposited
Securities represented by such Holder's ADSs, the Depositary will deem such
Holder (unless otherwise specified in the notice distributed to Holders) to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Company to vote the Deposited Securities, provided, however, that no such
discretionary proxy shall be given by the Depositary with respect to any matter
to be voted upon as to which the Company informs the Depositary that (i) the
Company does not wish such proxy to be given, (ii) substantial opposition
exists, or (iii) the rights of holders of Deposited Securities will be adversely
affected. Notwithstanding anything contained in the Deposit Agreement or this
ADR to the contrary, the Depositary shall not have any obligation to take any
action with respect to any meeting, or solicitation of consents or proxies, of
holders of Deposited Securities if the taking of such action would violate U.S.
laws. There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger,
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 replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. In giving
A-18
effect to such change, split-up, cancellation, consolidation or other
reclassification of Deposited Securities, recapitalization, reorganization,
merger, consolidation or sale of assets, the Depositary may, with the Company's
approval, and shall, if the Company shall so request, subject to the terms of
the Deposit Agreement and receipt of an opinion of counsel to the Company
satisfactory to the Depositary that such actions are not in violation of any
applicable laws or regulations, (i) issue and deliver additional ADSs as in the
case of a stock dividend on the Shares, (ii) amend the Deposit Agreement and the
applicable ADRs, (iii) amend the applicable Registration Statement(s) on Form
F-6 as filed with the Commission in respect of the ADSs, (iv) call for the
surrender of outstanding ADRs to be exchanged for new ADRs, and (v) take such
other actions as are appropriate to reflect the transaction with respect to the
ADSs. The Company agrees to, jointly with the Depositary, amend the Registration
Statement on Form F-6 as filed with the Commission to permit the issuance of
such new form of ADRs. Notwithstanding the foregoing, in the event that any
security so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's prior written approval, and shall, if the
Company requests in writing, subject to receipt of an opinion of Company's
counsel satisfactory to the Depositary that such action is not in violation of
any applicable laws or regulations, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement. The Depositary and the Company shall not be responsible for (i) any
failure to determine that it may be lawful or feasible to make such securities
available to Holders in general or any Holder in particular, (ii) any foreign
exchange exposure or loss incurred in connection with such sale, or (iii) any
liability to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this ADR, by
reason of any provision of any present or future law or regulation of the United
States, Brazil or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future, of the Bylaws of the Company or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Bylaws of the
Company or provisions of or governing Deposited Securities, (iii) for any action
or inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
A-19
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons, its agents, the Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the ADSs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required (and no Custodian shall 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 or their respective agents shall be liable for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any vote is cast or the effect of any vote, provided
that any such action or omission is in good faith and in accordance with the
terms of the Deposit Agreement. The Depositary shall not incur any liability for
any failure to determine that any distribution or action may be lawful or
reasonably practicable, for the content of any information submitted to it by
the Company for distribution to the Holders or for any inaccuracy of any
translation thereof, for any investment risk associated with acquiring an
interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of
ADSs, Shares or Deposited Securities, for the credit-worthiness of any third
party, for allowing any rights to lapse upon the terms of the Deposit Agreement
or for the failure or timeliness of any notice from the Company.
None of the Company, the Depositary or the Custodian shall be liable for
any action or failure to act by any Holder relating to the Holder's obligations
under any applicable Brazilian law or regulation relating to foreign investment
in Brazil in respect of a withdrawal or sale of Deposited Securities, including,
without limitation, any failure to comply with a requirement to register such
investment pursuant to the terms of any applicable Brazilian law or regulation
prior to such withdrawal or any failure to report foreign exchange transactions
to the BACEN, as the case may be. Each Holder will be responsible for the report
of any false information relating to foreign exchange transactions to the
Custodian or the BACEN, as the case may be, in connection with deposits or
withdrawals of Deposited Securities.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
A-20
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii)
the appointment by the Company of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The Depositary may at any
time be removed by the Company by written notice of such removal, which removal
shall be effective on the later of (i) the 90th day after delivery thereof to
the Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall be required by the Company to execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed (except as required by applicable law), shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
(other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement).
The predecessor depositary, upon payment of all sums due it and on the written
request of the Company, shall (i) execute and deliver an instrument transferring
to such successor all rights and powers of such predecessor hereunder (other
than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such other information relating to ADSs and
Holders thereof as the successor may reasonably request. Any such successor
depositary shall promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph 22 and Section 6.1 of the Deposit Agreement, the Deposit Agreement and
applicable law, this ADR outstanding at any time, the provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall impose or
increase any fees or charges (other than charges in connection with foreign
exchange control regulations, and taxes and other governmental charges, delivery
and other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30) days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADSs. Notice of any amendment to the Deposit Agreement or
any ADR shall not need to describe in detail the specific amendments effectuated
thereby, and failure to describe the specific amendments in any such notice
shall not render such notice invalid, provided, however, that, in each such
case, the notice given to the Holders identifies a means for Holders and
Beneficial Owners to retrieve or receive the text of such amendment (i.e., upon
retrieval from the Commission's, the Depositary's or the Company's website or
upon request from the Depositary). The parties hereto agree that any amendments
or supplements which (i) are reasonably necessary (as agreed by the Company and
the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
A-21
Securities Act or (b) the ADSs to be settled solely in electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges
to be borne by Holders, shall be deemed not to materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial
Owner at the time any amendment or supplement so becomes effective shall be
deemed, by continuing to hold such ADSs, to consent and agree to such amendment
or supplement and to be bound by the Deposit Agreement and this ADR, if
applicable, as amended or supplemented thereby. In no event shall any amendment
or supplement impair the right of the Holder to surrender such ADS and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require an amendment of, or supplement to, the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and this ADR at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement and
this ADR in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by distributing notice
of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and, in either case, a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4 of the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by distributing
notice of such termination to the Holders of all ADSs then outstanding at least
thirty (30) days prior to the date fixed in such notice for such termination.
The date so fixed for termination of the Deposit Agreement in any termination
notice so distributed by the Depositary to the Holders of ADSs is referred to as
the "Termination Date". Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement. If any ADSs shall remain outstanding after the Termination
Date, the Registrar and the Depositary shall not, after the Termination Date,
have any obligation to perform any further acts under the Deposit Agreement,
except that the Depositary shall, subject, in each case, to the terms and
conditions of the Deposit Agreement, continue to (i) collect dividends and other
distributions pertaining to Deposited Securities, (ii) sell securities and other
property received in respect of Deposited Securities, (iii) deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any securities or other
property, in exchange for ADSs surrendered to the Depositary (after deducting,
or charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental
charges for the account of the Holders and Beneficial Owners, in each case upon
the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such
actions as may be required under applicable law in connection with its role as
Depositary under the Deposit Agreement. At any time after the Termination Date,
A-22
the Depositary may sell the Deposited Securities then held under the Deposit
Agreement and shall after such sale hold un-invested the net proceeds of such
sale, together with any other cash then held by it under the Deposit Agreement,
in an un-segregated account and without liability for interest, for the pro -
rata benefit of the Holders whose ADSs have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement except (i) to account for such net proceeds and
other cash (after deducting, or charging, as the case may be, in each case, the
fees and charges of, and expenses incurred by, the Depositary, and all
applicable taxes or governmental charges for the account of the Holders and
Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the
Deposit Agreement), and (ii) as may be required at law in connection with the
termination of the Deposit Agreement. After the Termination Date, the Company
shall be discharged from all obligations under the Deposit Agreement, except for
its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit
Agreement. The obligations under the terms of the Deposit Agreement of Holders
and Beneficial Owners of ADSs outstanding as of the Termination Date shall
survive the Termination Date and shall be discharged only when the applicable
ADSs are presented by their Holders to the Depositary for cancellation under the
terms of the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25) and Section 5.10 of the Deposit
Agreement, the Depositary, its Affiliates and their agents, on their own behalf,
may own and deal in any class of securities of the Company and its Affiliates
and in ADSs. In its capacity as Depositary, the Depositary shall not lend Shares
or ADSs; provided, however, that the Depositary may (i) issue ADSs prior to the
receipt of Shares pursuant to Section 2.3 of the Deposit Agreement and (ii)
deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
A-23
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate. The Depositary may also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with any one person on a
case by case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not earnings thereon, shall be
held for the benefit of the Holders (other than the Applicant).
A-24
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS on the books of the Depositary with full power of substitution
in the premises.
Dated: Name: ______________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not on
file with the Depositary, must be forwarded
with this ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must
be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
A-25
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons depositing
Shares or surrendering ADSs for cancellation agree to pay the following fees of
the Depositary:
-------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding fraction thereof) issued. receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
-------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for the
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
-------------------------------------------------------------------------------------------------------------------
(3) Distribution of cash Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held.
distributions (i.e., sale of
rights and other
entitlements).
-------------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) held.
other free stock
distributions, or
(ii) exercise of rights to
purchase additional ADSs.
-------------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
other than ADSs or rights to fraction thereof) held.
purchase additional ADSs
(i.e., spin-off shares).
-------------------------------------------------------------------------------------------------------------------
(6) Depositary Services. Up to U.S. $5.00 per 100 ADSs (or Person holding ADSs on applicable
fraction thereof) held. record date(s) established by the
Depositary.
-------------------------------------------------------------------------------------------------------------------
B-1
II. Charges
Holders, Beneficial Owners, persons depositing Shares and persons
surrendering ADSs for cancellation and for the purpose of withdrawing Deposited
Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other governmental
charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the servicing or delivery of Deposited
Securities.
B-2
