AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
Exhibit
(a) (2)
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of June [ ], 2007 (the “Amendment”), to the Deposit Agreement dated
as of January 2, 2007 (as amended hereby, the “Deposit
Agreement”), among Petróleo Brasileiro S.A. -
PETROBRAS, incorporated under the laws of Federative Republic of Brazil (the “Company”), JPMorgan
Chase Bank, N.A., as depositary (the “Depositary”), and all holders from time to time of American
depositary receipts (“ADRs”) issued thereunder.
WITNESSETH:
WHEREAS, the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS, pursuant to paragraph (16) of the form of ADR contained in the Deposit Agreement, the
Company and the Depositary desire to amend the terms of the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Depositary hereby agree to amend the Deposit Agreement as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning given to such
terms in the Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. All references in the Deposit Agreement to the term “Deposit Agreement”
shall, as of the Effective Date (as herein defined), refer to the Deposit Agreement, dated as of
January 2, 2007 as amended by this Amendment.
SECTION 2.02. Section 1(c) of the Deposit Agreement is amended by replacing
“four” with “two”.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. All references in the form of ADR to the number of Shares
represented by each ADS is amended to reflect that each ADS represents two Shares.
SECTION 3.03. The form of ADR, reflecting the amendments set forth herein, is
amended and restated to read as set forth as Exhibit A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit Agreement as amended
hereby constitute the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms,
subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or admissibility into evidence of
this Amendment or the Deposit Agreement as amended hereby, neither of such agreements need to be
filed or recorded with any court or other authority in the Federative Republic of Brazil, nor does
any stamp or similar tax or governmental charge need to be paid in the Federative Republic of
Brazil on or in respect of such agreements.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set forth above
and shall be effective as the close of business New York time on July 2, 2007 (the “Effective
Date”).
SECTION 5.02. Outstanding ADRs. ADRs issued prior or subsequent to the date hereof,
which do not reflect the changes to the form of ADR effected hereby, do not need to be called in
for exchange and may remain outstanding until such time as the Holders thereof choose to surrender
them for any reason under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 16 of the Deposit Agreement in connection
with any and all liability it or they may incur as a result of the terms of this Amendment and the
transactions contemplated herein.
SECTION 5.04. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken together shall
constitute one instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this Amendment to be
executed by representatives thereunto duly authorized as of the date set forth above.
| PETRÓLEO BRASILEIRO S. A. - PETROBRAS |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| JPMORGAN CHASE BANK, N.A. |
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| By: | ||||
| Name: | ||||
| Title | ||||
EXHIBIT A
ANNEXED TO AND INCORPORATED
IN AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
_______
|
No. of ADSs: | |
Number |
||
| Each ADS represents | ||
| Two Shares | ||
| CUSIP: |
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
PREFERRED SHARES
of
PETRÓLEO
BRASILEIRO S. A. - PETROBRAS
(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 two preferred shares
(including the rights to receive Shares described in paragraph (1), “Shares” and, together with any
other securities, cash or property from time to time held by the Depositary in respect or in lieu
of deposited Shares, the “Deposited Securities”), of
PETRÓLEO BRASILEIRO S. A. - PETROBRAS, a
corporation organized under the laws of The Federative Republic of Brazil (the “Company”),
deposited under the Amended and Restated Deposit Agreement dated as of January 2, 2007 (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.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a) Shares in form
satisfactory to the Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or transactions; or, (c)
unless requested in writing to cease doing so at least two business days prior to the proposed
deposit, other rights to receive Shares (until such Shares are actually deposited pursuant to (a)
or (b) above, “Pre-released ADRs”) only if (i) Pre-released ADRs are fully collateralized (marked
to market daily) with cash, government securities 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 20% of all ADSs (excluding those evidenced by Pre-released ADRs). 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.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated transfer
office (the “Transfer Office”), (a) a register (the “ADR Register”) for the registration,
registration of transfer, combination and split-up of ADRs, and, in the case of Direct Registration
ADRs, shall include the Direct Registration System, which at all reasonable times will be open for
inspection by Holders and the Company for the purpose of communicating with Holders in the interest
of the business of the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR
(and to the Deposited Securities represented by the ADSs evidenced hereby), when properly endorsed
(in the case of ADRs in certificated form) or upon delivery to the Depositary of proper instruments
of transfer, is transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided that the Depositary,
notwithstanding any notice to the contrary, may treat the person in whose name this ADR is
registered on the ADR Register as the absolute owner hereof for all purposes and neither the
Depositary nor the Company will have any obligation or be subject to any liability under the
Deposit Agreement to any holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be split into other
ADRs or combined with other ADRs into one ADR, evidencing the aggregate number of ADSs surrendered
for split-up or combination, by the Holder hereof or by duly authorized attorney upon surrender of
this ADR at the Transfer Office properly endorsed (in the case of ADRs in certificated form) or
upon delivery to the Depositary of proper instruments of transfer and duly stamped as may be
required by applicable law; provided that the Depositary may close the ADR Register at any
time or from time to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a certificated ADR with a Direct
Registration ADR, or vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR, as the case may be, for any authorized number of ADSs requested, evidencing the same aggregate
number of ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as the case
may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of transfer,
split-up or combination of any ADR, the delivery of any distribution in respect thereof, or,
subject to the last sentence of paragraph (2), the withdrawal of any Deposited Securities, and from
time to time in the case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or
the Custodian may require: (a) payment with respect thereto of (i) any stock transfer or other tax
or other governmental charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers of Shares or other Deposited Securities upon any applicable register and
(iii) any applicable charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity of any signatory and genuineness of any signature and (ii)
such other information, including without limitation, information as to citizenship, residence,
exchange control approval, beneficial ownership of any securities, compliance with applicable law,
regulations, provisions of or governing Deposited Securities and terms of the Deposit Agreement and
this ADR, as it may deem necessary or proper; and (c) compliance with such regulations as the
Depositary may establish consistent with the Deposit Agreement and any regulations which the
Depositary is informed of in writing by the Company which are deemed desirable by the Depositary,
the Company or the Custodian to facilitate compliance with any applicable rules or regulations of
the Banco Central do Brasil or Comissão de Valores Mobiliários. The issuance of ADRs, the
acceptance of deposits of Shares, the registration, registration of transfer, split-up or
combination of ADRs or, subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the ADR Register or any
register for Deposited Securities is closed or when any such action is deemed advisable by the
Depositary or, in order to comply with applicable law, by the Company.
(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.
(7) Charges of Depositary. The Depositary may collect from (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 ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i) a fee of U.S.$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 U.S.$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) a fee of U.S.$0.02 per ADS (or portion thereof) in each calendar year for the
services performed by the Depositary in administering the ADRs (which fee shall be assessed against
Holders as of the record date or dates set by the Depositary not more than once each calendar year
and shall be payable at the sole discretion of the Depositary by billing such Holders or by
deducting such charge from one or more cash dividends or other cash distributions), and (v) such
fees and expenses as are incurred by the Depositary (including without limitation expenses incurred
on behalf of Holders in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited Securities or otherwise
in connection with the Depositary’s or its Custodian’s compliance with applicable law, rule or
regulation. The Company will pay all other charges and expenses of the Depositary and any agent of
the Depositary (except the Custodian) pursuant to agreements from time to time between the Company
and the Depositary, except (i) stock transfer or other taxes and other governmental charges (which
are payable by Holders or persons depositing Shares), (ii) cable, telex and facsimile transmission
and delivery charges incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration or transfer of Deposited
Securities on any applicable register in connection with the deposit or withdrawal of Deposited
Securities (which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency), and (v) any other charge payable
by any of the Depositary, any of the Depositary’s agents, including, without limitation, the
Custodian, or the agents of the Depositary’s agents in connection with the servicing of the Shares
or other Deposited Securities (which charge shall be assessed against Holders as of the record date
or dates set by the Depositary and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed by agreement between
the Company and the Depositary.
(8) Available Information. The Deposit Agreement, the provisions of or governing
Deposited Securities and any written communications from the Company, which are both received by
the Custodian or its nominee as a holder of Deposited Securities and made generally available to
the holders of Deposited Securities, are available for inspection by Holders at the offices of the
Depositary and the Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders when furnished by the
Company. The Company is subject to the periodic reporting requirements of the Securities Exchange
Act of 1934 and accordingly files certain reports with the United States Securities and Exchange
Commission (the “Commission”). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date hereof at 000 X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed by the
Depositary by the manual or facsimile signature of a duly authorized officer of the Depositary.
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary |
||||
| By | ||||
| Authorized Officer | ||||
The Depositary’s office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
[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 reasonable 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. Subject to the other provisions hereof
and of the Deposit Agreement, the Depositary shall cause any Cash distribution that is paid in a
currency other than U.S. dollars to be converted into U.S. dollars as promptly as reasonably
practicable under the circumstances after the receipt thereof.
(11) Record Dates. The Depositary may or shall if required, in each case 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. Under the Brazilian Corporate Law (Law 6404 of
December 15, 1976) and the by-laws of the Company on the date of the Deposit Agreement, the Shares
have general voting rights only so long as the Company has failed for three consecutive fiscal
years to pay a minimum dividend on the Shares of 25% of the Company’s net profits; otherwise the
Shares have no voting rights in respect of any matters except changes to the Company’s capital
structure which adversely affect the Shares. As soon as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders of Shares or other
Deposited Securities, the Depositary shall distribute to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials, (b) that each Holder on
the record date set by the Depositary therefor will, subject to any applicable provisions of
Brazilian law, rule and/or regulation 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.
To the extent such instructions are not so received by the Depositary from any Holder, the
Depositary shall take such action as is necessary, upon the written request of the Company and
subject to applicable law, and the terms and conditions of the Deposited Securities, to cause such
underlying Shares to be counted for the purposes of satisfying applicable quorum requirements;
There can be no assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable such Holder to return 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 reasonable 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.
(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 (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strike, civil unrest,
revolutions, rebellions, explosions and computer failure) 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 t
he
Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary may resign as
Depositary by 60 days prior written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment 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 no less than 60 days prior written notice of such removal, to become effective
upon the later of (i) the 60th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. 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. 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; provided, however, if
the Depositary shall have (i) resigned as Depositary hereunder, notice of such termination by the
Depositary shall not be provided to Holders unless a successor depositary shall not be operating
hereunder within 60 days of the date of such resignation, and (ii) been removed as Depositary
hereunder, notice of such termination by the Depositary shall not be provided to Holders unless a
successor depositary shall not be operating hereunder on the 60th day after the
Company’s notice of removal was first provided to the Depositary. 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 to in respect of the Deposit Agreement and this ADR, except to account for such net
proceeds and other cash and for its obligations to the Company under Section 16 of the Deposit
Agreement. 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
(including, without limitation, those under Section 16 of the Deposit Agreement).
(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 may deem
necessary or appropriate under the Deposit Agreement 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.
