TAM S.A. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
XXX
X.X.
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of March , 2006
TABLE
OF CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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Section
1. Certain Definitions
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(a)
ADR Register
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1 | |||
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(b)
ADRs; Direct Registration ADRs
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1
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(c)
ADS
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1 | |||
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(d)
Custodian
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1
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(e)
Deliver, execute, issue et al
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1
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(f)
Delivery Order
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1
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(g)
Deposited Securities
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1
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(h)
Direct Registration System
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1
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(i)
Holder
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2
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(j)
Securities Act of 1933
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2
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(k)
Securities Exchange Act of 1934
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2
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(l)
Shares
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2
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(m)
Transfer Office
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2
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(n)
Withdrawal Order
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2
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Section
2. ADRs
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2 | |||
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Section
3. Deposit of Shares
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3
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Section
4. Issue of ADRs
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3
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Section
5. Distributions on Deposited Securities
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4
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Section
6. Withdrawal of Deposited Securities
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4
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Section
7. Substitution of ADRs
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4
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Section
8. Cancellation and Destruction of ADRs
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4
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Section
9. The Custodian
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4
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Section
10. Co-Registrars and Co-Transfer Agents
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5
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Section
11. Lists of Holders
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5
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Section
12. Depositary's Agents
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5
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Section
13. Successor Depositary
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5
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Section
14. Reports
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5
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Section
15. Additional Shares
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6
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Section
16. Indemnification
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6
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Section
17. Notices
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7 | |||
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Section
18. Miscellaneous
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7
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Section
19. Consent to Jurisdiction
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7
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TESTIMONIUM
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9
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SIGNATURES
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9
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-i-
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EXHIBIT
A
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1)
Issuance of ADRs
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A-2
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(2)
Withdrawal of Deposited Securities
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A-2
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(3)
Transfers of ADRs
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A-2
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(4)
Certain Limitations
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A-3
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(5)
Taxes
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A-4 | |||
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(6)
Disclosure of Interests
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A-4
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(7)
Charges of Depositary
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A-5
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(8)
Available Information
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A-6
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(9)
Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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FORM
OF REVERSE OF ADR
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A-7
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(10)
Distributions on Deposited Securities
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A-7
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(11)
Record Dates
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A-8
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(12)
Voting of Deposited Securities
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A-8
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(13)
Changes Affecting Deposited Securities
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A-8
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(14)
Exoneration
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A-9
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(15)
Resignation and Removal of Depositary; the Custodian
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A-9
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(16)
Amendment
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A-10
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(17)
Termination
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A-10
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(18)
Appointment
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A-11
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-ii-
DEPOSIT
AGREEMENT dated as of March , 2006 (the "Deposit Agreement") among XXX
X.X.
and its successors (the "Company"), JPMORGAN CHASE BANK, N.A., as depositary
hereunder
(the "Depositary"), and all holders from time to time of American Depositary
Receipts issued
hereunder ("ADRs") evidencing American Depositary Shares ("ADSs") representing
deposited
Shares (defined below). The Company hereby appoints the Depositary as depositary
for the
Deposited Securities and hereby authorizes and directs the Depositary to act
in
accordance with
the
terms set forth in this Deposit Agreement. All capitalized terms used herein
have the meanings
ascribed to them in Section 1 or elsewhere in this Deposit Agreement. The
parties hereto
agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder.
ADRs may be either in physical certificated form or Direct Registration ADRs.
ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs
(as
hereinafter defined), shall be substantially in the form of Exhibit A annexed
hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded
on the Direct Registration System. References to "ADRs" shall include
certificated ADRs
and
Direct Registration ADRs, unless the context otherwise requires. The form of
ADR
is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding
upon the parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents
the right to receive one Share and a pro rata share in any other Deposited
Securities.
(d) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the
context requires) and any additional or substitute Custodian appointed pursuant
to Section 9.
(e) The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an
electronic transfer or transfers in the Direct Registration System, and,
when
used with respect to
ADRs
in physical certificated form, shall refer to the physical delivery, execution,
issuance, registration,
surrender, transfer or cancellation of certificates representing the
ADRs.
(f) "Delivery
Order"
is
defined in Section 3.
(g) "Deposited
Securities"
as of
any time means all Shares at such time deposited under
this Deposit Agreement and any and all other Shares, securities, property and
cash at such time
held
by the Depositary or the Custodian in respect or in lieu of such deposited
Shares and other
Shares, securities, property and cash.
(h) "Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the Depositary pursuant to which the Depositary may record the
ownership of ADRs without the issuance
of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary
to the Holders entitled thereto. For purposes hereof, the Direct Registration
System shall
include access to the Profile Modification System maintained by DTC which
provides for automated
transfer of ownership between DTC and the Depositary.
1
(i) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(j) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(k) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(l) "Shares"mean
the
preferred shares of the Company, and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices
in its American
depositary receipt business, or at the request of the Company typewritten and
photocopied
on plain or safety paper, and shall be substantially in the form set forth
in
the form of ADR,
with
such changes as may be required by the Depositary or the Company to comply
with
their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations
or restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations
of any number of ADSs. ADRs in certificated form shall be executed by the
Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary. ADRs
in
certificated form bearing the manual or facsimile signature of anyone who was
at
the time
of
execution a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding
that such officer has ceased to hold such office prior to the delivery of such
ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated
ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
2
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to issue to, or upon the written order of, the person or persons
designated in such order
a
Direct Registration ADR or ADRs evidencing the number of ADSs representing
such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer
in respect of such deposited Shares; (c) instruments assigning to the Custodian
or its nominee
any distribution on or in respect of such deposited Shares or indemnity
therefor; and (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable
after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to
paragraph (10)
or
(13) of the form of ADR, the Custodian shall present such Deposited Securities
for registration
of transfer into the name of the Custodian or its nominee, to the extent such
registration
is practicable, at the cost and expense of the person making such deposit (or
for whose benefit
such deposit is made) and shall obtain evidence satisfactory to it of such
registration. Deposited
Securities shall be held by the Custodian for the account and to the order
of
the Depositary
at such place or places and in such manner as the Depositary shall determine.
Deposited
Securities may be delivered by the Custodian to any person only under the
circumstances
expressly contemplated in this Deposit Agreement. To the extent that the
provisions
of or governing the Shares make delivery of certificates therefor impracticable,
Shares may
be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably
accept, including, without limitation, by causing them to be credited to an
account maintained
by the Custodian for such purpose with the Company or an accredited
intermediary, such
as a
bank, acting as a registrar for the Shares, together with delivery of the
documents, payments
and Delivery Order referred to herein to the Custodian or the Depositary.
The
Depositary and the Custodian shall comply with reasonable written instructions
from the
Company or its Brazilian counsel to maintain registration of the amount of
Deposited Securities
with Banco Central do Brasil (the "Central Bank") and to furnish to the Central
Bank and
to
the Comissão
de
Valores Mobiliários
(the
"Securities Commission"), whenever reasonably required,
information or documents related to this Deposit Agreement, the ADRs and the
Deposited
Securities and distributions thereon, and may rely, and shall be fully protected
in relying,
on such written instructions from the Company or its Brazilian counsel in
respect of such registration,
information and documents.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery Order
by letter,
first class airmail postage prepaid, or, at the request, risk and expense of
the
person making the
deposit, by cable, telex or facsimile transmission. After receiving such notice
from the Custodian,
the Depositary, subject to this Deposit Agreement, shall properly issue at
the
Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested
and evidencing the aggregate ADSs to which such person is entitled.
3
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
reasonable discretion that any distribution pursuant to paragraph (10) of the
form of ADR is not
practicable with respect to any Holder, the Depositary may make such
distribution as it so deems
practicable, including the distribution of foreign currency, securities or
property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the
retention thereof as Deposited Securities with respect to such Holder's ADRs
(without liability for
interest thereon or the investment thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby, the
Depositary
may require proper endorsement in blank of such ADR (or duly executed
instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered
to, or upon the written order of, any person designated in such order (a
"Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder,
by cable, telex or facsimile transmission. Delivery of Deposited Securities
may
be made by
the
delivery of certificates (which, if required by law shall be properly endorsed
or accompanied
by properly executed instruments of transfer or, if such certificates may be
registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order)
or
by such other means as the Depositary may deem practicable, including, without
limitation,
by transfer of record ownership thereof to an account designated in the
Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar
for the Deposited Securities.
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon
cancellation
thereof or in lieu of and in substitution for such destroyed, lost or stolen
certificated ADR,
unless the Depositary has notice that such ADR has been acquired by a
bona
fide
purchaser, upon
the
Holder thereof filing with the Depositary a request for such execution and
delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed by
the
Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy ADRs in
certificated form
so
cancelled in accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from
time
to time appoint
one or more agents to act for it as Custodian hereunder. Each Custodian so
appointed (other
than JPMorgan Chase Bank, N.A.) shall give written notice to the Company
and the
Depositary
accepting such appointment and agreeing to be bound by the applicable terms
hereof. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary.
The Depositary may discharge any Custodian at any time upon notice to the
Custodian
being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon
the
instruction of the Depositary, all Deposited Securities held by it to a
Custodian continuing to act.
4
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars
to register ADRs and transfers, combinations and split-ups of ADRs and to
countersign
ADRs in accordance with the terms of any such appointment and (ii) co-transfer
agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer
offices in addition to the Transfer Office on behalf of the Depositary. Each
co-registrar or co-transfer
agent (other than JPMorgan Chase Bank, N.A.) shall give notice in writing to
the
Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms of this Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and
its
agents to supply copies of such portions of such records as the Company may
request. The Depositary
or its agent shall furnish to the Company promptly upon the written request
of
the Company,
a list of the names, addresses and holdings of ADSs by all Holders as of a
date
that is prior
to
or otherwise within seven days of the Depositary's receipt of such
request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company
of such appointment and shall remain responsible for the performance of such
obligations
as if no agent were appointed.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by
60
days prior written notice of its election so to do delivered to the Company.
The
Depositary may
at
any time be removed by the Company by 60 days prior written notice of such
removal. Notwithstanding
anything to the contrary contained herein, in case at any time the Depositary
acting
hereunder shall resign or be removed, it shall continue to act as Depositary
for
the purpose of
terminating this Deposit Agreement pursuant to paragraph (17) of the form of
ADR. Any bank or
trust
company into or with which the Depositary may be merged or consolidated, or
to
which the
Depositary shall transfer substantially all its American depositary receipt
business, shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
14.
Reports.
On or
before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securities regulatory
authority or
stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy
thereof in English or with an English translation or summary. The Company has
delivered to
the
Depositary, the Custodian and any Transfer Office, a copy of all provisions
of
or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company
and existing at the date of this Deposit Agreement and, promptly upon any change
thereto,
the Company shall deliver to the Depositary, the Custodian and any Transfer
Office, a copy
(in
English or with an English translation) of such provisions as so changed. The
Depositary and
its
agents may rely upon the Company's delivery thereof for all purposes of this
Deposit Agreement.
5
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or
under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities
or shall deposit any Shares under this Deposit Agreement, except under
circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts
to comply with written instructions of the Company not to accept for deposit
hereunder any Shares
identified in such instructions at such times and under such circumstances
as
may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with securities
laws in the United States.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its agents against any loss, liability or expense (including reasonable
fees
and expenses
of counsel) which may arise out of acts performed or omitted, in connection
with
the provisions
of this Deposit Agreement and of the ADRs, as the same may be amended, modified
or supplemented
from time to time in accordance herewith (i) by either the Depositary or its
agents or
their
respective directors, employees, agents and affiliates, except, subject to
the
penultimate paragraph
of this Section 16, for any liability or expense directly arising out of the
negligence or bad
faith
of the Depositary, or (ii) by the Company or any of its directors, employees,
agents or affiliates.
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense
which may arise out of any misstatement or alleged misstatement or omission
or
alleged omission
in any registration statement, proxy statement, prospectus (or placement
memorandum), or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the
Depositary or its agents (other than the Company), as applicable, furnished
in
writing by the Depositary
and not changed or altered by the Company expressly for use in any of the
foregoing documents
or (ii) if such information is provided, the failure to state a material fact
necessary to make
the
information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable fees
and
expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the
extent such loss, liability or expense is due to the negligence or bad faith
of
the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other
for
any indirect, special, punitive or consequential damages (collectively "Special
Damages")
except (i) to the extent such Special Damages arise from the gross negligence
or
willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages
arise from or out of a claim brought by a third party (including, without
limitation, Holders)
against the Depositary or its agents, except to the extent such Special Damages
arise out of
the
gross negligence or willful misconduct of the party seeking indemnification
hereunder.
6
Any
person seeking indemnification hereunder (an “indemnified
person”) shall notify the person
from whom it is seeking indemnification (the “indemnifying person”) of the
commencement of any indemnifiable action or claim promptly after such
indemnified person becomes
aware of such commencement (provided that the failure to make such notification
shall not
affect such indemnified person’s rights to seek indemnification except to the
limited
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 consent of the indemnifying person, which consent shall
not be unreasonably
withheld
or
delayed unless (i) there is no finding or admission of any violation of
law
and
no effect on any other claims that may be made against such other party and
(ii)
the sole relief
provided is monetary damages that are paid in full by the party seeking the
settlement
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received by
it at
the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
|
(a)
|
JPMorgan
Chase Bank, N.A.
|
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
|
(b)
|
XXX
X.X.
|
Xx.
Xxxxxxxx 000 - Xxxx 0, 1°
andar
04072-000
São
Paulo
SP Brazil
Attention:
General Counsel
Fax:
00
00 0000 0000
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners of ADRs
from
time to time shall be parties to this Deposit Agreement and shall be bound
by
all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable
in
any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed
in any number of counterparts, each of which shall be deemed an original and
all
of which
shall constitute one instrument.
7
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding
against the Company brought by the Depositary or any Holder, arising out of
or
based upon
this
Deposit Agreement or the transactions contemplated hereby, may be instituted
in
any state
or
federal court in New York, New York, and irrevocably waives any objection which
it may now or hereafter have to the laying of venue of any such proceeding,
and
irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company also
irrevocably agrees that any legal suit, action or proceeding against the
Depositary brought by the
Company, arising out of or based upon this Deposit Agreement or the transactions
contemplated
hereby, may only be instituted in a state or federal court in New York, New
York. The
Company has appointed National Corporate Research Ltd., 000 Xxxx 00xx
Xxxxxx,
Xxxxx 000, Xxx
Xxxx,
Xxx Xxxx, as its authorized agent (the "Authorized Agent") upon which process
may be
served
in any such action arising out of or based on this Deposit Agreement or the
transactions contemplated
hereby which may be instituted in any state or federal court in New York, New
York
by
the Depositary or any Holder, and waives any other requirements of or objections
to personal
jurisdiction with respect thereto. The Company represents and warrants that
the
Authorized
Agent has agreed to act as said agent for service of process, and the Company
agrees to
take
any and all action, including the filing of any and all documents and
instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon
the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every
respect, effective service of process upon the Company. If, for any reason,
the
Authorized Agent
named above or its successor shall no longer serve as agent of the Company
to
receive service
of process in New York, the Company shall promptly appoint a successor
acceptable to the
Depositary, so as to serve and will promptly advise the Depositary thereof.
In
the event the Company
fails to continue such designation and appointment in full force and effect,
the
Company
hereby waives personal service of process upon it and consents that any such
service of process
may be made by certified or registered mail, return receipt requested, directed
to the Company
at its address last specified for notices hereunder, and service so made shall
be deemed completed
five (5) days after the same shall have been so mailed. Notwithstanding the
foregoing, any
action based on this Agreement may be instituted by the Depositary or any Holder
in any competent
court in The Federative Republic of Brazil.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may
hereafter be entitled to, or have attributed to it, any right of immunity,
on
the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of
any
relief in any
respect thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment,
or from execution of judgment, or other legal process or proceeding for the
giving of any
relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any
time
be commenced, with respect to its obligations, liabilities or other matter
under
or arising out
of or
in connection with the Shares or Deposited Securities, the ADSs, the ADRs or
this Agreement,
the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief
and enforcement.
8
IN
WITNESS WHEREOF, XXX X.X. and JPMORGAN CHASE BANK, N.A.
have
duly executed this Deposit Agreement as of the day and year first above set
forth and all
holders of ADRs shall become parties hereto upon acceptance by them of ADRs
issued in accordance
with the terms hereof.
| XXX X.X. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| JPMORGAN CHASE BANK, N.A. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: Vice President | ||
9
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
| Number | |||
| No. of ADSs: | |||
| Each ADS represents | |||
| One Share | |||
| CUSIP: |
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
PREFERRED
SHARES
of
XXX
X.X.
(Incorporated
under the laws of The Federative Republic of Brazil)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under
the
laws of the United States of America , as depositary hereunder (the
"Depositary"), hereby
certifies that ______
is the
registered owner (a "Holder") of ____
American
Depositary Shares
("ADSs"), each (subject to paragraph (13)) representing one preferred share
(including the rights
to
receive Shares described in paragraph (1), "Shares" and, together with any
other
securities,
cash or property from time to time held by the Depositary in respect or in
lieu
of deposited
Shares, the "Deposited Securities"), of XXX X.X., a corporation organized under
the laws
of
the Federative Republic of Brazil (the "Company"), deposited under the Deposit
Agreement
dated as of March , 2006 (as amended from time to time, the "Deposit Agreement")
among
the
Company, the Depositary and all Holders from time to time of American Depositary
Receipts
issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a party
thereto.
The Deposit Agreement and this ADR (which includes the provisions set forth
on
the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New
York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at
the
Transfer
Office (defined in paragraph (3)) only against deposit with the Custodian of:
(a) Shares in
form
satisfactory to the Custodian; (b) rights to receive Shares from the Company
or
any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or,
(c)
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above,
"Pre-released ADRs") only if (i) Pre-released ADRs are fully collateralized
(marked to market
daily) with cash or such other collateral as the Depositary deems appropriate
held by the Depositary
for the benefit of Holders (but such collateral shall not constitute "Deposited
Securities"),
(ii) each recipient of Pre-released ADRs represents and agrees in writing with
the Depositary
that such recipient or its customer (a) beneficially owns such Shares, (b)
assigns all beneficial
right, title and interest therein to the Depositary, (c) holds such Shares
for
the account of
the
Depositary and (d) will deliver such Shares to the Custodian as soon as
practicable and promptly
upon demand therefor and (iii) all Pre-released ADRs evidence not more than
30%
of all ADSs
(excluding those evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate. The Depositary
may retain for its own account any earnings on collateral for Pre-released
ADRs
and its
charges for issuance thereof. At the request, risk and expense of the person
depositing Shares, the
Depositary may accept deposits for forwarding to the Custodian and may deliver
ADRs at a place
other than its office. Every person depositing Shares under the Deposit
Agreement represents
and warrants that such Shares are validly issued and outstanding, fully paid,
nonassessable
and free of pre-emptive rights, that the person making such deposit is duly
authorized
so to do and that such Shares (A) are not "restricted securities" as such term
is defined in
Rule
144 under the Securities Act of 1933 unless at the time of deposit they may
be
freely transferred
in accordance with Rule 144(k) and may otherwise be offered and sold freely
in
the United
States or (B) have been registered under the Securities Act of 1933. Such
representations and
warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary will not knowingly
accept for deposit under the Deposit Agreement any Shares required to be
registered under
the
Securities Act of 1933 and not so registered; the Depositary may refuse to
accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance
with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of
(i) a
certificated ADR in form satisfactory to the Depositary at the Transfer Office
or (ii) proper instructions
and documentation in the case of a Direct Registration ADR, the Holder hereof
is
entitled
to delivery at, or to the extent in dematerialized form from, the Custodian's
office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk
and
expense of the Holder hereof, the Depositary may deliver such Deposited
Securities at such
other place as may have been requested by the Holder. Notwithstanding any other
provision of
the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only
for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be
amended from time to time) under the Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
in
the Borough of Manhattan, The City of New York (the "Transfer Office"), (a)
a
register (the
"ADR
Register") for the registration, registration of transfer, combination and
split-up of ADRs, and, in the case of Direct Registration ADRs, shall include
the Direct Registration System, which
at
all reasonable times will be open for inspection by Holders and the Company
for
the purpose
of communicating with Holders in the interest of the business of the Company
or
a matter relating
to the Deposit Agreement and (b) facilities for the delivery and receipt of
ADRs. The term ADR
Register includes the Direct Registration System. Title to this ADR (and to
the
Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed (in the case
of ADRs
in
certificated form) or upon delivery to the Depositary of proper instruments
of
transfer, is transferable
by delivery with the same effect as in the case of negotiable instruments under
the laws
of
the State of New York; provided
that the
Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR Register
as
the absolute
owner hereof for all purposes and neither the Depositary nor the Company will
have any obligation
or be subject to any liability under the Deposit Agreement to any holder of
an
ADR, unless
such holder is the Holder thereof. Subject to paragraphs (4) and (5), this
ADR
is transferable
on the ADR Register and may be split into other ADRs or combined with other
ADRs
into
one
ADR, evidencing the aggregate number of ADSs surrendered for split-up or
combination, by
the
Holder hereof or by duly authorized attorney upon surrender of this ADR at
the
Transfer Office
properly endorsed (in the case of ADRs in certificated form) or upon delivery
to
the Depositary
of proper instruments of transfer and duly stamped as may be required by
applicable law;
provided
that the
Depositary may close the ADR Register at any time or from time to time
when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary
shall, for the purpose of substituting a certificated ADR with a Direct
Registration ADR,
or
vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR,
as the case
may
be, for any authorized number of ADSs requested, evidencing the same aggregate
number
of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR,
as
the case
may
be, substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of any ADR, the delivery of any distribution in respect thereof, or, subject
to
the last sentence
of paragraph (2), the withdrawal of any Deposited Securities, and from time
to
time in the
case
of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require:
(a) payment with respect thereto of (i) any stock transfer or other tax or
other
governmental
charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers
of Shares or other Deposited Securities upon any applicable register and (iii)
any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory
to it of (i) the identity of any signatory and genuineness of any signature
and
(ii) such other
information, including without limitation, information as to citizenship,
residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and
this
ADR, as it may deem necessary or proper; and (c) compliance with such
regulations as the
Depositary may establish consistent with the Deposit Agreement and any
regulations which the
Depositary is informed of in writing by the Company which are deemed desirable
by the Depositary,
the Company or the Custodian to facilitate compliance with any applicable rules
or regulations
of the Banco Central do Brasil or Comissão
de
Valores Mobiliários.
The
issuance of ADRs,
the
acceptance of deposits of Shares, the registration, registration of transfer,
split-up or combination of ADRs or, subject to the last sentence of paragraph
(2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the
ADR
Register
or any register for Deposited Securities is closed or when any such action
is
deemed advisable
by the Depositary.
A-3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf
of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by
the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall
be
paid by the Holder hereof to the Depositary. The Depositary may refuse to effect
any registration,
registration of transfer, split-up or combination hereof or, subject to the
last
sentence of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary
may also deduct from any distributions on or in respect of Deposited Securities,
or may
sell
by public or private sale for the account of the Holder hereof any part or
all
of such Deposited
Securities (after attempting by reasonable means to notify the Holder hereof
prior to such
sale), and may apply such deduction or the proceeds of any such sale in payment
of such tax or
other
governmental charge, the Holder hereof remaining liable for any deficiency,
and
shall reduce
the number of ADSs evidenced hereby to reflect any such sales of Shares. In
connection with
any
distribution to Holders, the Company will remit to the appropriate governmental
authority
or agency all amounts (if any) required to be withheld and owing to such
authority or agency
by
the Company; and the Depositary and the Custodian will remit to the appropriate
governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority
or agency by the Depositary or the Custodian. If the Depositary determines
that
any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject
to any tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after
deduction of such taxes to the Holders entitled thereto. Each Holder of an
ADR
or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective
directors, employees, agents and affiliates against, and hold each of them
harmless from,
any
claims by any governmental authority with respect to taxes, additions to tax,
penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit
obtained.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited
Securities may require disclosure of or impose limits on beneficial or other
ownership of
Deposited Securities, other Shares and other securities and may provide for
blocking transfer, voting
or
other rights to enforce such disclosure or limits, Holders and all persons
holding ADRs agree
to
comply with all such disclosure requirements and ownership limitations and
to
comply with
any
reasonable Company instructions in respect thereof. The Company reserves the
right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so
as to
permit the Company to deal directly with the Holder thereof as a holder of
Shares and Holders
agree to comply with such instructions. The Depositary agrees to cooperate
with
the Company
in its efforts to inform Holders of the Company's exercise of its rights under
this paragraph and agrees to consult with, and provide reasonable assistance
without risk, liability or expense
on the part of the Depositary, to the Company on the manner or manners in which
it may enforce
such rights with respect to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may charge (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of
Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant
to a merger, exchange of securities or any other transaction or event
affecting the ADSs or
the
Deposited Securities, and (ii) each person surrendering ADSs for withdrawal
of Deposited Securities
or whose ADSs are cancelled or reduced for any other reason, U.S. $5.00 for
each
100 ADSs
(or
portion thereof) issued, delivered, reduced, cancelled or surrendered (as
the case may be).
The
Depositary may sell (by public or private sale) sufficient securities and
property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge.
The following additional charges shall be incurred by the Holders, by any party
depositing or
withdrawing Shares or by any party surrendering ADRs, to whom ADRs are issued
(including, without
limitation, issuance pursuant to a stock dividend or stock split declared by
the
Company or
an
exchange of stock regarding the ADRs or the Deposited Securities or a
distribution of ADRs pursuant
to paragraph (10)), whichever is applicable (i) to the extent not prohibited
by
the rules of the
primary stock exchange upon which the ADSs are listed, a fee of $0.02 or less
per ADS (or portion
thereof) for any Cash distribution made pursuant to the Deposit Agreement,
(ii)
to the extent
not prohibited by the rules of the primary stock exchange upon which the ADSs
are listed, a
fee of
$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii)
a fee for
the
distribution or sale of securities pursuant to paragraph (10) hereof, such
fee
being in an amount
equal to the fee for the execution and delivery of ADSs referred to above which
would have
been
charged as a result of the deposit of such securities (for purposes of this
paragraph (7) treating
all such securities as if they were Shares) but which securities or the net
cash
proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
to
the
extent not prohibited by the rules of the primary stock exchange upon which
the
ADSs are listed,
a
fee of US$0.02 per ADS (or portion thereof) per year for the services performed
by the Depositary
in administering the ADRs (which fee shall be assessed against Holders as of
the
record
date or dates set by the Depositary not more than once each calendar year and
shall be payable
at the sole discretion of the Depositary by billing such Holders or by deducting
such charge
from one or more cash dividends or other cash distributions), and (v) such
fees
and expenses
as are incurred by the Depositary (including without limitation expenses
incurred on behalf
of
Holders in connection with compliance with foreign exchange control regulations
or any law
or
regulation relating to foreign investment) in delivery of Deposited Securities
or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation.
The Company will pay all other charges and expenses of the Depositary and any
agent of
the
Depositary (except the Custodian) pursuant to agreements from time to time
between the Company
and the Depositary, except (i) stock transfer or other taxes and other
governmental charges
(which are payable by Holders or persons depositing Shares), (ii) cable, telex
and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders
delivering Shares, ADRs or Deposited Securities (which are payable by such
persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any
applicable register in connection with the deposit or withdrawal of Deposited
Securities (which
are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses
of the Depositary in connection with the conversion of foreign currency into
U.S. dollars (which
are paid out of such foreign currency), and (v) any other charge payable by
any
of the Depositary,
any of the Depositary’s
agents,
including, without limitation, the custodian, or the agents
of
the Depositary’s agents in connection with the servicing of the Shares or other
Deposited
Securities (which charge shall be assessed against Holders as of the record
date
or dates set
by
the depositary and shall be payable at the sole discretion of the Depositary
by
billing such Holders
or by deducting such charge from one or more cash dividends or other cash
distributions). Such
charges may at any time and from time to time be changed by agreement between
the Company
and the Depositary.
A-5
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received by
the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to
the
holders of Deposited Securities, are available for inspection by Holders at
the
offices of the Depositary
and the Custodian and at the Transfer Office. The Depositary will distribute
copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange
Act of 1934 and accordingly files certain reports with the United States
Securities and Exchange
Commission (the "Commission"). Such reports and other information may be
inspected
and copied at public reference facilities maintained by the Commission located
at the date
hereof at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary | ||
| |
|
|
| By: | ||
|
Authorized Officer |
||
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto
on
the record date set
by
the Depositary therefor at such Holder's address shown on the ADR Register,
in
proportion to
the
number of Deposited Securities (on which the following distributions on
Deposited Securities
are received by the Custodian) represented by ADSs evidenced by such Holder's
ADRs: (a)
Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash
distribution or the net proceeds of sales of any other distribution or portion
thereof authorized
in this paragraph (10) ("Cash"), on an averaged or other practicable basis,
subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible
or
impracticable
with respect to certain Holders, and (iii) deduction of the Depositary's
expenses in (1)
converting any foreign currency to U.S. dollars by sale or in such other manner
as the Depositary
may determine to the extent that it determines that such conversion may be
made
on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States
by
such means
as
the Depositary may determine to the extent that it determines that such transfer
may be made
on a
reasonable basis, (3) obtaining any approval or license of any governmental
authority required
for such conversion or transfer, which is obtainable at a reasonable cost and
within a reasonable
time and (4) making any sale by public or private means in any commercially
reasonable
manner. If the Company shall have advised the Depositary pursuant to the
provisions of
the
Deposit Agreement that any such conversion, transfer or distribution can be
effected only with
the
approval or license of the Brazilian government or any agency thereof or the
Depositary shall
become aware of any other governmental approval or license required therefor,
the Depositary
may, in its discretion, apply for such approval or license, if any, as the
Company or its Brazilian
counsel may reasonably instruct in writing or as the Depositary may deem
desirable including,
without limitation, Central Bank registration. (b) Shares.
(i)
Additional ADRs evidencing
whole ADSs representing any Shares available to the Depositary resulting from
a
dividend
or free distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and
(ii)
U.S. dollars available to it resulting from the net proceeds of sales of Shares
received in a Share
Distribution, which Shares would give rise to fractional ADSs if additional
ADRs
were issued
therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other instruments in the discretion
of the Depositary representing rights to acquire additional ADRs in respect
of
any rights to
subscribe for additional Shares or rights of any nature available to the
Depositary as a result of a
distribution on Deposited Securities ("Rights"), to the extent that the Company
timely furnishes to
the
Depositary evidence satisfactory to the Depositary that the Depositary may
lawfully distribute
the same (the Company has no obligation to so furnish such evidence), or (ii)
to
the extent
the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Rights
as
in the case of Cash,
or
(iii) to the extent the Company does not so furnish such evidence and such
sales
cannot practicably
be accomplished by reason of the nontransferability of the Rights, limited
markets therefor,
their short duration or otherwise, nothing (and any Rights may lapse). (d)
Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on
Deposited Securities other than Cash, Share Distributions and Rights ("Other
Distributions"), by
any
means that the Depositary may deem equitable and practicable, or (ii) to the
extent the Depositary
deems distribution of such securities or property not to be equitable and
practicable, any
U.S.
dollars available to the Depositary from the net proceeds of sales of Other
Distributions as
in the
case of Cash. Such U.S. dollars available will be distributed by checks drawn
on
a bank in the United States for whole dollars and cents. Fractional cents will
be withheld without liability and
dealt
with by the Depositary in accordance with its then current
practices.
A-7
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable,
fix a record date (which, to the extent applicable, shall be as near as
practicable to any corresponding
record date set by the Company) for the determination of the Holders who shall
be responsible
for the fee assessed by the Depositary for administration of the ADR program
and
for any
expenses provided for in paragraph (7) hereof as well as for the determination
of the Holders who
shall
be entitled to receive any distribution on or in respect of Deposited
Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters
and only such Holders shall be so entitled or obligated.
(12)
Voting
of Deposited Securities.
At the
date of this Deposit Agreement, the Shares have
only
limited voting rights. As soon as practicable after receipt from the Company
of
notice of
any
meeting or solicitation of consents or proxies of holders of Shares or other
Deposited Securities,
as soon as practicable after receipt from the Company of notice of any meeting
or solicitation
of consents or proxies of holders of Shares or other Deposited Securities,
the
Depositary
shall distribute to Holders a notice stating (a) such information as is
contained in such notice
and any solicitation materials, (b) that each Holder on the record date set
by
the Depositary therefor
will, subject to any applicable provisions of Brazilan law, be entitled to
instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented
by the ADSs evidenced by such Holder's ADRs and (c) the manner in which such
instructions
may be given, including instructions to give a discretionary proxy to a person
designated
by the Company. Upon receipt of instructions of a Holder on such record date
in
the manner
and on or before the date established by the Depositary for such purpose, the
Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited
Securities to vote or cause to be voted the Deposited Securities represented
by
the ADSs
evidenced by such Holder's ADRs in accordance with such instructions. The
Depositary will
not
itself exercise any voting discretion in respect of any Deposited Securities.
There is no guarantee
that Holders generally or any Holder in particular will receive the notice
described above
with sufficient time to enable such Holder to return any voting instructions
to
the Depositary
in a timely manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended
ADRs
(with
or
without calling this ADR for exchange) or cash, securities or property on the
record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation
or other reclassification of Deposited Securities, any Share Distribution or
Other Distribution
not distributed to Holders or any cash, securities or property available to
the
Depositary
in respect of Deposited Securities from (and the Depositary is hereby authorized
to surrender
any Deposited Securities to any person and, irrespective of whether such
Deposited Securities
are surrendered or otherwise cancelled by operation of law, rule, regulation
or
otherwise,
to sell by public or private sale any property received in connection with)
any
recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy
or
sale
of
all or substantially all the assets of the Company, and to the extent the
Depositary does not so
amend
this ADR or make a distribution to Holders to reflect any of the foregoing,
or
the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent
its pro rata interest in the Deposited Securities as then
constituted.
A-8
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur
no
liability (i) if any present or future law, rule or regulation of the United
States, the Federative
Republic of Brazil or any other country, or of any governmental or regulatory
authority or
any
securities exchange or market or automated quotation system, the provisions
of
or governing
any Deposited Securities, any present or future provision of the Company's
charter, any act
of
God, war, terrorism or other circumstance beyond its control shall prevent,
delay or subject to
any
civil or criminal penalty
any act which the Deposit Agreement or this ADR provides shall be done
or
performed by
it or
them (including, without limitation, voting pursuant to paragraph (12)
hereof),
or (ii) by reason of any exercise or failure to exercise any discretion given
it
in the Deposit
Agreement or this ADR; (b) assume no liability except to perform its obligations
to the extent
they are specifically set forth in this ADR and the Deposit Agreement without
gross negligence
or bad faith; (c) in the case of the Depositary and its agents, be under no
obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities
or this ADR; (d) in the case of the Company and its agents hereunder be under
no
obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited
Securities or this ADR, which in its opinion may involve it in expense or
liability, unless
indemnity satisfactory to it against all expense (including fees and
disbursements of counsel)
and liability be furnished as often as may be required; or (e) not be liable
for
any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by
it to
be competent
to give such advice or information. The Depositary, its agents and the Company
may rely
and
shall be protected in acting upon any written notice, request, direction or
other document believed
by them to be genuine and to have been signed or presented by the proper party
or parties.
The Depositary and its agents will not be responsible for any failure to carry
out any instructions
to vote any of the Deposited Securities, for the manner in which any such vote
is cast or
for
the effect of any such vote. The Depositary may rely upon instructions from
the
Company or
its
Brazilian counsel in respect of any approval or license of the Brazilian
government or any agency
thereof required for any currency conversion, transfer or distribution. The
Depositary and its
agents may own and deal in any class of securities of the Company and its
affiliates and in ADRs.
Notwithstanding anything to the contrary set forth in the Deposit Agreement
or
an ADR, the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained
by or on its behalf in connection with the Deposit Agreement, any Holder or
Holders, any
ADR
or ADRs or otherwise related hereto to the extent such information is requested
or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations,
administrative or judicial process, banking, securities or other regulators.
The
Company
has agreed to indemnify the Depositary and its agents under certain
circumstances and the
Depositary has agreed to indemnify the Company under certain circumstances.
Neither the Company
nor the Depositary nor any of their respective agents shall be liable to Holders
or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages.
No disclaimer of liability under the Securities Act of 1933 is intended by
any
provision hereof.
A-9
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as
Depositary by 60 days prior written notice of its election to do so delivered
to
the Company, or be removed as Depositary by the Company by 60 days prior written
notice of such removal delivered
to the Depositary. The Depositary may appoint substitute or additional
Custodians and the
term
"Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement
may be amended by the Company and the Depositary, provided
that any
amendment that
imposes or increases any fees or charges (other than stock transfer or other
taxes and other governmental
charges, transfer or registration fees, cable, telex or facsimile transmission
costs, delivery
costs or other such expenses), or that shall otherwise prejudice any substantial
existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given
to
the Holders. Every Holder of an ADR at the time any amendment to the Deposit
Agreement
so becomes effective shall be deemed, by continuing to hold such ADR, to consent
and
agree
to such amendment and to be bound by the Deposit Agreement as amended thereby.
In no
event
shall any amendment impair the right of the Holder of any ADR to surrender
such
ADR and
receive the Deposited Securities represented thereby, except in order to comply
with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be
registered on Form F-6 under the Securities Act of 1933 or (b) the ADSs or
Shares to be traded solely
in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or
charges to be borne by Holders, shall be deemed not to prejudice any substantial
rights of Holders.
Notwithstanding the foregoing, if any governmental body or regulatory body
should adopt
new
laws, rules or regulations which would require amendment or supplement of the
Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and
the
Depositary
may amend or supplement the Deposit Agreement and the ADR at any time in
accordance
with such changed laws, rules or regulations. Such amendment or supplement
to
the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment
or supplement is given to Holders or within any other period of time as required
for compliance.
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit
Agreement, the Depositary may, and shall at the written direction of the
Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders
at least 30 days prior to the date fixed in such notice for such termination,
which 30 days shall
not
act to reduce the 60 days referred to in paragraph (15) above.. After the date
so fixed for termination,
the Depositary and its agents will perform no further acts under the Deposit
Agreement
and this ADR, except to receive and hold (or sell) distributions on Deposited
Securities
and deliver Deposited Securities being withdrawn. As soon as practicable after
the expiration
of six months from the date so fixed for termination, the Depositary shall
sell
the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in
a
segregated account
the net proceeds of such sales, together with any other cash then held by it
under the Deposit
Agreement, without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs
not
theretofore surrendered. After making such sale, the Depositary shall be
discharged from
all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net
proceeds and other cash. After the date so fixed for termination, the Company
shall be discharged
from all obligations under the Deposit Agreement except for its obligations
to
the Depositary
and its agents.
A-10
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and
conditions
of the Deposit Agreement shall be deemed for all purposes to (a) be a party
to
and bound
by
the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint
the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and
to
take any and all
actions contemplated in the Deposit Agreement and the applicable ADR(s), to
adopt any and all
procedures necessary to comply with applicable law and to take such action
as
the Depositary in
its
sole discretion may deem necessary or appropriate to carry out the purposes
of
the Deposit Agreement
and the applicable ADR(s), the taking of such actions to be the conclusive
determinant of
the
necessity and appropriateness thereof.
A-11
