EXHIBIT 4.1
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CPFL ENERGIA S.A.
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF ____________, 2004
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ______________, 2004 among CPFL ENERGIA
S.A., incorporated under the laws of the Federative Republic of Brazil (herein
called the Issuer), THE BANK OF NEW YORK, a New York banking corporation (herein
called the Depositary), and all Owners and Beneficial Owners from time to time
of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Deposit Agreement, it is agreed by and between the parties
hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an
"Article" or "Articles" or to a "Section" or "Sections", such references shall
mean an article or articles or a section or sections of this Deposit Agreement,
unless otherwise required by the context.
SECTION 1.3 Brazil.
The term "Brazil" shall mean the Federative Republic of Brazil.
SECTION 1.4 Beneficial Owner
The term "Beneficial Owner" shall mean each person owning from time
to time any beneficial interest in the American Depositary Shares evidenced by
any Receipt. A Beneficial Owner of American Depositary Shares may or may not be
the Owner of the Receipt evidencing those American Depositary Shares.
SECTION 1.5 Central Bank.
The term "Central Bank" shall mean the Banco Central do Brasil or
any successor governmental agency in Brazil.
SECTION 1.6 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.7 Custodian.
The term "Custodian" shall mean the City of Osasco, State of Sao
Paulo, Brazil office of Banco Bradesco S.A., as agent of the Depositary for the
purposes of this Deposit Agreement, and any other firm or corporation which may
hereafter be appointed by the Depositary pursuant to the terms of Section 5.5,
as substitute custodian hereunder, as the context shall require.
SECTION 1.8 CVM.
The term "CVM" shall mean the Comissao de Valores Mobiliarios, the
Brazilian National Securities Commission, or any successor governmental agency
in Brazil.
SECTION 1.9 Delivery; Deposit; Surrender; Transfer; Withdraw.
The terms "deliver", "deposit", "surrender", "transfer" or
"withdraw", when used (i) with respect to Shares: (a) in the case of book-entry
Shares, shall refer to an entry or entries in an account or accounts maintained
by institutions authorized under applicable law to effect transfers of
securities, or (b) in the case of physical Share certificates, to the physical
delivery, deposit, withdrawal or transfer of certificates representing the
Shares and (ii) with respect to American Depositary Shares evidenced by
Receipts, (a) in the case of American Depositary Shares available in book-entry
form, shall refer to appropriate adjustments in the records maintained by (1)
the Depositary, (2)
The Depository Trust Company or its nominee, or (3) institutions that have
accounts with The Depository Trust Company, as applicable, or (b) otherwise,
shall refer to the physical delivery, deposit, surrender, transfer or withdrawal
of such American Depositary Shares evidenced by Receipts.
SECTION 1.10 Deposit Agreement.
The term "Deposit Agreement" shall mean this Deposit Agreement, as
the same may be amended from time to time in accordance with the provisions
hereof.
SECTION 1.11 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.12 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.5.
SECTION 1.13 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.14 Estatuto Social.
The term "Estatuto Social" shall mean the constitutive documents of
the Issuer, as may be amended from time to time.
SECTION 1.15 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares.
SECTION 1.16 Issuer.
The term "Issuer" shall mean CPFL ENERGIA S.A., incorporated under
the laws of Brazil, and its successors.
SECTION 1.17 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.18 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares.
SECTION 1.19 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.20 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Issuer or its affiliates (as defined in Rule 144 under the Securities Act) in a
transaction or chain of transactions not involving any public offering or which
are subject to resale limitations under Regulation D under that Act or both, or
which are held by an officer, director (or persons performing similar functions)
or other affiliate of the Issuer, or which would require registration under the
Securities Act in connection with the offer and sale thereof in the United
States, or which are subject to other restrictions on sale or deposit under the
laws of the United States or Brazil, or under a shareholder agreement or the
Estatuto Social.
SECTION 1.21 Securities Act.
The term "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.22 Shares.
The term "Shares" shall mean common shares in registered form of the
Issuer, heretofore validly issued and outstanding and fully paid, nonassessable
and that were not issued in violation of any pre-emptive or similar rights of
the holders of outstanding Shares or hereafter validly issued and outstanding
and fully paid, nonassessable and that were not issued in violation of any
pre-emptive or similar rights of the holders of outstanding Shares or interim
certificates representing such Shares; provided, however, that, if there shall
occur any change in nominal value, a split-up or consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4.8,
an exchange or conversion in respect of the Shares of the Issuer, the term
"Shares" shall thereafter also mean the successor securities resulting from such
change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual or facsimile signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized officer of the Registrar. The Depositary shall maintain books on
which each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts bearing the manual
or facsimile signature of a duly authorized signatory of the Depositary and, if
applicable, a Registrar who was at any time a proper signatory of the Depositary
or, if applicable, such Registrar shall bind the Depositary or, if applicable,
such Registrar, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
The Receipts may, upon the request or with the prior consent of the
Issuer, be endorsed with or have incorporated in the text thereof such legends
or recitals or modifications not inconsistent with the provisions of this
Deposit Agreement as may be reasonably required by the Depositary or required to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which American Depositary Shares may
be listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to the Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form reasonably satisfactory to the
Custodian, together with all such certifications as may be required by the
Depositary or the Custodian in accordance with the provisions of this Deposit
Agreement, and, if the Depositary requires, together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for the
number of American Depositary Shares representing such deposit. No Share shall
be accepted for deposit unless accompanied by evidence reasonably satisfactory
to the Depositary that any necessary approval has been granted by any
governmental body in Brazil that is then performing the function of the
regulation of currency exchange. If required by the Depositary, Shares presented
for deposit at any time, whether or not the transfer books of the Issuer or the
Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument reasonably satisfactory to the
Depositary, which will provide for the prompt transfer to the Custodian of any
dividend, or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof, such agreement of indemnity or other agreement as shall be reasonably
satisfactory to the Depositary.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to the Custodian of a certificate or certificates
for Shares to be deposited hereunder, together with the other documents above
specified, the Custodian shall, as soon as transfer and recordation can be
accomplished, present such
certificate or certificates to the Issuer or the Foreign Registrar, if
applicable, for transfer and recordation of the Shares being deposited in the
name of the Depositary or its nominee or the Custodian or its nominee at the
cost and expense of the person making such deposit (or for whose benefit such
deposit is made).
Deposited Securities shall be held by the Depositary or by the
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine. The Depositary agrees to
instruct the Custodian to place all Shares accepted for deposit under this
Deposit Agreement into an account or accounts separate from any other Shares of
the Issuer that may be held by the Custodian.
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by the Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Issuer or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Issuer that any
Deposited Securities have been recorded upon the books of the Issuer or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or the Custodian or its nominee), together with the other documents required as
above specified, the Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from the Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees and expenses of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.9, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may, upon at least 20 days' prior written notice to
the Issuer, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary. The Depositary
shall require that each co-transfer agent it appoints under this Section 2.4
give written notice to the Depositary and the Issuer accepting such appointment
and agreeing to abide by the applicable terms of this Deposit Agreement.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.9 and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement and any provisions of the
Deposited Securities and other applicable laws, the Owner of such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) Shares in the name of such Owner or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him and (b) any other securities, property and
cash to which such Owner is then entitled in respect of such Receipts to such
Owner or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office of the Custodian,
subject to Sections 2.6, 3.1 and 3.2 and to the other terms and conditions of
this Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or
distributions with respect to the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, or of any proceeds of sale
of any dividends, distributions or rights, which may at the time be held by the
Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates, if applicable, and other proper
documents of title for, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt to the Depositary for delivery at
the Corporate Trust Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Owner, by cable, telex or
facsimile transmission.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require the production of
proof reasonably satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with any laws or governmental regulations in Brazil or
the United States relating to the execution and delivery of Receipts or Shares
or to the withdrawal of Deposited Securities and the provisions of this Deposit
Agreement, including, without limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Issuer are closed, or if any such action
is deemed necessary or advisable by the Depositary or the Issuer at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or for any other reason, subject to the provisions of Section 7.7
hereof. Notwithstanding any other provision of this Deposit Agreement or the
Receipts, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Issuer or the deposit of
Shares in connection with voting at a shareholders meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance
with any U.S. or foreign laws or governmental regulations relating to the
Receipts or to the withdrawal of the Deposited Securities, or (iv) any other
reason that may at the time be specified in paragraph I(A)(1) of the General
Instructions to Form F-6, as then in effect, or any successor provision thereto.
Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Shares required to
be registered under the provisions of the Securities Act, unless a registration
statement is in effect as to such Shares. The Depositary will comply with the
reasonable written instructions of the Issuer that the Depositary will not
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may be reasonably specified in such
instructions in order to facilitate the Issuer's compliance with United States
or Brazilian securities laws.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled,
provided the Depositary maintains a record of destroyed Receipts. The Depositary
shall make the record of cancelled and destroyed Receipts available to the
Issuer upon its reasonable written request.
SECTION 2.9 Pre-Release of Receipts.
Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom Receipts or Shares are to be delivered that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any
time as a result of Pre-Releases will not normally exceed thirty percent (30%)
of the Shares deposited hereunder; 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 compensation
received by it in connection with the foregoing.
SECTION 2.10 Maintenance of Records
The Depositary agrees to maintain or cause its agents to maintain
records of all Receipts surrendered and Deposited Securities withdrawn under
Section 2.5, substitute Receipts delivered under Section 2.7, and of cancelled
or destroyed Receipts under Section 2.8, in keeping with procedures ordinarily
followed by stock transfer agents located in New York City or as required by the
laws or regulations governing the Depositary.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial
Owner of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, or such information relating to the registration on the books of the
Issuer or the Foreign Registrar, if applicable, to execute such certificates and
to make such representations and warranties, as the Depositary may deem
necessary or proper or as the Issuer may reasonably require by written request
to the Depositary consistent with its obligations under this Deposit Agreement.
The Depositary may, and at the reasonable written request of the Issuer shall,
withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made. The
Depositary shall, upon the Issuer's reasonable written request, as promptly as
practicable, provide to the Issuer copies of any such written proof or
information that it receives, unless that disclosure is prohibited by applicable
law. The Issuer may from time to time request Owners to provide information as
to the capacity in which such Owners hold Receipts and regarding the identity of
any other persons then interested in such Receipts and the nature of such
interest. Each Owner agrees to provide any information reasonably requested by
the Issuer or the Depositary pursuant to this Section 3.1.
SECTION 3.2 Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner or Beneficial Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner or
Beneficial Owner thereof any part or all of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner or Beneficial Owner of such
Receipt shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that (i) such Shares and each
certificate therefor, if applicable, are validly issued, fully paid,
nonassessable and were not issued in violation of any preemptive or similar
rights of the holders of outstanding Shares, (ii) such Shares are free and clear
of any lien, encumbrance, security interest, charge, mortgage or adverse claim
and (iii) the person making such deposit is duly authorized so to do. Every such
person shall also be deemed to represent that the deposit of such Shares and the
sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person are not restricted under the Securities Act. Such representations and
warranties shall survive the deposit of Shares and issuance of Receipts. If any
such representations and warranties are false in any way, the Issuer and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.4 Delivery of Information to the CVM.
Each of the Depositary and the Issuer hereby confirms to the other
that for as long as the Deposit Agreement is in effect, it shall furnish the CVM
and the Central Bank, at any time and within the period that may be determined,
with any information and documents related to the American Depositary Receipt
program and the Receipts issued hereunder. In the event that the Depositary or
the Custodian shall be advised in writing by reputable independent Brazilian
counsel that the Depositary or Custodian reasonably could be subject to
criminal, or material, as reasonably determined by the Depositary, civil,
liabilities as a result of the Issuer having failed to provide such information
or documents reasonably available only through the Issuer, the Depositary shall
have the right to terminate this Deposit Agreement, upon at least 15 days' prior
written notice to the Owners and the Issuer, and the Depositary shall not be
subject to any liability hereunder on account of such termination or such
determination. The effect of any such termination of this Deposit Agreement
shall be as provided in Section 6.2.
SECTION 3.5 Ownership Restrictions
Owners and Beneficial Owners shall comply with any limitations on
ownership of Shares under the Estatuto Social or applicable Brazilian law and
regulations as if they held the number of Shares their American Depositary
Shares represent. If the Estatuto Social or applicable Brazilian law and
regulations are changed (i) to require disclosure to the Issuer of beneficial or
other ownership of Deposited Securities or other securities or to limit
ownership of those securities or (ii) to provide for blocking of transfer,
voting or other rights to enforce disclosure or ownership limitations referred
to
in clause (i), the Depositary shall use its reasonable efforts to comply with
the Issuer's written instructions as to Receipts in respect of any such
enforcement or limitation or blocking of rights, and Owners and Beneficial
Owners shall comply with all such disclosure requirements and ownership
limitations and shall cooperate with the Depositary's compliance with such
instructions and are deemed by holding Receipts or any interest in them to
consent to any such limitation or blocking of rights.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution on any Deposited Securities, the Depositary shall, subject to
the provisions of Section 4.5, convert such dividend or distribution into
Dollars and shall distribute the amount thus received (net of the fees and
expenses of the Depositary as provided in Section 5.9 hereof, if applicable) to
the Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively;
provided, however, that in the event that the Issuer or the Depositary shall be
required to withhold and does withhold from such cash dividend or such other
cash distribution an amount on account of taxes, the amount distributed to the
Owner of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Issuer or its agent will remit to the appropriate governmental agency in
Brazil all amounts withheld and owing to such agency. The Depositary will
forward to the Issuer or its agent such information from its records as the
Issuer may reasonably request to enable the Issuer or its agent to file
necessary reports with governmental agencies, and the Depositary or the Issuer
or its agent may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Owners of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever
the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary shall, as promptly as
practicable after consultation with the Issuer, cause the securities or property
received by it to be distributed to the Owners entitled thereto, after deduction
or upon payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may reasonably deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the reasonable
opinion of the Depositary such distribution cannot be made proportionately among
the Owners entitled thereto, or if for any other reason (including, but not
limited to, any requirement that the Issuer or the Depositary withhold an amount
on account of taxes or other governmental charges or that such securities must
be registered under the Securities Act in order to be distributed to Owners or
Beneficial Owners) the Depositary deems such distribution not to be feasible,
the Depositary may, after consultation with the Issuer, adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Section 5.9) shall be distributed by the Depositary to the Owners entitled
thereto as in the case of a distribution received in cash; provided that any
unsold balance of such securities or property shall be distributed by the
Depositary to the Owners entitled thereto, if such distribution is feasible
without withholding for or on account of any taxes or other governmental charges
and without registration under the Securities Act, in accordance with such
equitable and practicable methods as the Depositary may have adopted; provided,
further, that no distribution to Owners pursuant to this Section shall be
unreasonably delayed by any action of the Depositary. To the extent such
property, or the net proceeds thereof, is not effectively distributed to Owners
as provided herein, the same shall constitute
Deposited Securities and each Receipt shall thereafter also represent its
proportionate interest in such property or net proceeds.
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Issuer shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of fees of the
Depositary as provided in Section 5.9. In lieu of delivering Receipts for
fractional American Depositary Shares in any such case, the Depositary shall
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, if any, all in the manner and subject to the
conditions described in Section 4.1. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
Notwithstanding the foregoing, in the event that the Depositary determines that
a distribution in Shares may not be legally made to some or all Owners, the
Depositary may sell such Shares and shall remit the net proceeds thereof, if
any, after deduction of the Depositary's fees and expenses as provided in
Section 5.9 hereof, to the Owners entitled thereto as in the case of a
distribution in cash.
SECTION 4.4 Rights.
In the event that the Issuer shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Issuer, shall, subject to
Brazilian law and the provisions of the Issuer's by-laws as notified to the
Depositary by the Issuer, have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary determines in its reasonable discretion that it is lawful and
feasible to make such rights available to all Owners or to certain Owners but
not to other Owners, the Depositary may distribute to any Owner to whom it
reasonably determines the distribution to be lawful and feasible, in proportion
to the number of American Depositary Shares held by such Owner, warrants or
other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Issuer to the Depositary that (a) the
Issuer has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Issuer has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all Owners or to certain Owners, then upon instruction from such an
Owner pursuant to such warrants or other instruments to the Depositary from such
Owner to exercise such rights, upon payment by such Owner to the Depositary for
the account of such Owner of an amount equal to the purchase price of the Shares
to be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Issuer shall cause the
Shares so purchased to be delivered to the Depositary on behalf of such Owner.
As agent for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of this Deposit Agreement, and shall, pursuant
to Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
section, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
If the Depositary determines in its reasonable discretion that it is
not lawful and feasible to make such rights available to all Owners or to
certain Owners, it may sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by the Owners to
whom it has determined it may not lawfully or feasibly make such rights
available, and allocate the net proceeds of such sales (net of the fees and
expenses of the Depositary as provided in Section 5.9 and all taxes and
governmental charges payable in connection with such rights and subject to the
terms and conditions of this Deposit Agreement) for the account of such Owners
otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any Receipt
or otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act with respect to a distribution to Owners
or are registered under the provisions of such Act. Nothing in this Deposit
Agreement shall create any obligation on the part of the Issuer to file a
registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner of Receipts requests distribution of warrants or other instruments,
notwithstanding that there has been no such registration under the Securities
Act, the Depositary shall not effect such distribution unless it has received an
opinion from
recognized counsel in the United States for the Issuer upon which the Depositary
may rely that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall, as promptly as
practicable, convert or cause to be converted, by sale or in any other manner
that it may determine, such foreign currency into Dollars, and such Dollars
shall be distributed to the Owners entitled thereto or, if the Depositary shall
have distributed any warrants or other instruments which entitle the holders
thereof to such Dollars, then to the holders of such warrants and/or instruments
upon surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
SECTION 4.6 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each American Depositary Share, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date which date shall, to the
extent practicable, be the same date as, or as near as practicable to, the
record date (if any) applicable to the Deposited Securities (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof or (ii) entitled
to give instructions for the exercise of voting rights at any such meeting, or
(b) on or after which each American Depositary Share will represent the changed
number of Shares. Subject to the provisions of Sections 4.1 through 4.5 and to
the other terms and conditions of this
Deposit Agreement, the Owners on such record date shall be entitled, as the case
may be, to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively and to give voting instructions and to act in respect of any other
such matter.
SECTION 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting or solicitation of proxies or
consents of holders of Shares or other Deposited Securities, if requested in
writing by the Issuer the Depositary shall, as soon as practicable thereafter,
mail to the Owners a notice, the form of which notice shall be in the sole
discretion of the Depositary, which shall contain (a) such information as is
contained in such notice of meeting received by the Depositary from the Issuer,
and (b) a statement that the Owners as of the close of business on a specified
record date will be entitled, subject to any applicable provision of the laws of
Brazil and of the Estatuto Social, to instruct the Depositary as to the exercise
of the voting rights, if any, pertaining to the amount of Shares or other
Deposited Securities represented by their respective American Depositary Shares
and (c) a statement as to the manner in which such instructions may be given,
including an express indication that such instructions may be given or deemed
given in accordance with the last sentence of this paragraph if no instruction
is received, to the Depositary to give a discretionary proxy to a person
designated to the Issuer. Upon the written request of an Owner on such record
date, received on or before the date established by the Depositary for such
purpose, (the "Instruction Date") the Depositary shall endeavor, in so far as
practicable, to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions or deemed instructions. If no instructions are received by the
Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Issuer with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Issuer to vote such Deposited Securities, provided,
that no such instruction shall be given with respect to any matter as to which
the Issuer informs the Depositary (and the Issuer agrees to provide such
information as promptly as practicable in writing) that (x) the Issuer does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary or the Custodian in exchange for or in conversion of
or in respect of Deposited Securities, shall be treated as new Deposited
Securities under this Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities, if any,
the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may, and shall if the Issuer shall so request, execute
and deliver additional Receipts as in the case of a dividend in Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.9 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Issuer. The
Depositary shall also, upon written request, send to the Owners copies of such
reports furnished by the Issuer pursuant to Section 5.6. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Issuer shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall, at the
expense of the Issuer, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may, after consultation with the Issuer to the extent practical,
by public or private sale dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner as the Depositary deems necessary and practicable to pay any such taxes
or charges and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to the Owners entitled thereto in
proportion to the number of American Depositary Shares held by them
respectively.
The Depositary will forward to the Issuer or its agent such
information from its records as the Issuer may reasonably request to enable the
Issuer or its agent to
file necessary reports with governmental authorities or agencies. The
Depositary, the Custodian or the Issuer or any of their agents may file such
reports as are necessary to reduce or eliminate applicable taxes on dividends
and other distributions in respect of Deposited Securities and to obtain other
benefits under any applicable tax treaties for the Owners following the review
and approval of such reports by the Issuer and its advisors.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE ISSUER.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Owners, provided that such inspection
shall not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Issuer or a matter related to
this Deposit Agreement or the Receipts.
The Issuer shall have the right at all reasonable times to (i)
inspect transfer and registration records of the Depositary or its agent and
take copies thereof and (ii) require the Depositary or its agent, the Registrar
and any co-transfer agents or co-registrars to supply promptly copies of such
portions of such records as the Issuer may reasonably request.
The Depositary may, with notice to the Issuer if other than in the
ordinary course of business, close the transfer books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder or at the reasonable written request of the Issuer or if the
suspension of the registration of transfer is deemed necessary or advisable by
the Depositary or the Issuer at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or for any other reason.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or, upon at least 20 days' prior written notice to the
Issuer, appoint a Registrar or one or more co-registrars for registry of such
Receipts in accordance with any requirements of such exchange or exchanges.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner, if by reason of any provision of any present or
future law or regulation of the United States or any other country, or of any
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the Estatuto Social, or by reason of any
provision of any securities issued or distributed by the Issuer, or any offering
or distribution thereof, or by reason of any act of God or war or terrorism or
other circumstances beyond its control, the Depositary or the Issuer shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of this Deposit Agreement or the Deposited Securities it is provided shall be
done or performed; nor shall the Depositary or the Issuer or any of their
respective directors, employees, agents or affiliates incur any liability to any
Owner or Beneficial Owner of any Receipt by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.4 of the Deposit Agreement, or
for any other reason, such distribution or
offering may not be made available to Owners, and the Depositary may not dispose
of such distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Issuer.
Each of the Issuer and its directors, officers, employees, agents
and affiliates assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that the
Issuer agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Each of the Depositary and its directors, officers, employees,
agents and affiliates assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Issuer nor any of their respective
directors, officers, employees, agents or affiliates shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary.
Neither the Depositary nor the Issuer nor any of their respective
directors, officers, employees, agents affiliates shall be liable for any action
or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or any other person believed by
it in good faith to be competent to give such advice or information.
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
Neither the Issuer nor the Depositary shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act is intended by
any provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Issuer, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided and the receipt of
any required approvals of the Brazilian National Securities Commission.
The Depositary may at any time be removed by the Issuer by 60 days
prior written notice of such removal, which shall become effective upon the
later to occur of (i) the 60th day after delivery of the notice to the
Depositary or (ii) the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided and the receipt of any required
approvals of the Brazilian National Securities Commission.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Issuer shall use its reasonable best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodian.
The Custodian or its successor shall be subject at all times and in
all respects to the directions of the Depositary and shall be responsible solely
to it. The Custodian may resign and be discharged from its duties hereunder by
written notice of such resignation delivered to the Depositary at least 60 days
prior to the date on which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary, in
consultation with the Issuer, shall, promptly after receiving such notice,
appoint a substitute custodian, which shall thereafter be the Custodian
hereunder. The Depositary may discharge the Custodian any time upon notice to
the Custodian being discharged. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint a substitute custodian, which shall thereafter be the Custodian
hereunder, subject to the receipt of any required
approvals of the Brazilian National Securities Commission. Upon demand of the
Depositary, the Custodian shall deliver such of the Deposited Securities or
evidence of ownership and title of the Deposited Securities held by it as are
requested of it to the substitute custodian. The substitute custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary. The Depositary
agrees with the Issuer that at no time shall there be more than one Custodian
acting in connection with this Deposit Agreement.
Upon the appointment of any successor depositary hereunder, the
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of the
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of the Custodian, execute and deliver to
the Custodian all such instruments as may be proper to give to the Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.6 Notices and Reports.
On or before the first date on which the Issuer gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Issuer agrees to transmit to the Depositary and the Custodian a copy
of the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities.
The Issuer will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Issuer to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Issuer to holders of its Shares. If requested in
writing by the Issuer, the Depositary will arrange for the mailing, at the
Issuer's expense, of copies of such notices, reports and
communications to all Owners. The Issuer will timely provide the Depositary with
the quantity of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any issuance or distribution
of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities, (each a
"Distribution") the Issuer will promptly notify the Depositary of the
Distribution and, if requested in writing by the Depositary, promptly furnish to
the Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires a registration statement under the Securities Act to be in
effect prior to making such Distribution available to Owners entitled thereto.
If in the opinion of such counsel a registration statement is required, such
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a registration statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer nor
any company controlled by, controlling or under common control with the Issuer
will at any time deposit any Shares, either originally issued or previously
issued and reacquired by the Issuer or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act or the Issuer
furnishes the Depositary with an opinion of U.S. counsel for the Issuer that is
reasonably satisfactory to the Depositary to the effect that upon deposit the
Shares will be eligible for public resale in the United States without further
registration of the Shares under the Securities Act.
SECTION 5.8 Indemnification.
The Issuer agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and the Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
fees and expenses of counsel) which
may arise out of any registration with the Commission of Receipts, American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or the Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of any of them, or (ii) by the Issuer or any of its directors,
employees, agents and affiliates.
The Depositary agrees to indemnify the Issuer, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than ten (10) days after receipt of notice
of such Proceeding) notify the party obligated to provide such indemnification
(the "Indemnitor") of such Proceeding. The failure of the Indemnitee to so
notify the Indemnitor shall not impair the Indemnitee's ability to seek
indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in subparagraph (b) below
or there are no other defenses available to the Indemnitee as specified in
subparagraph (d) below, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnitee (in which case all attorney's fees and expenses
shall be borne by the Indemnitor and the Indemnitor shall in good faith defend
the
Indemnitee). The Indemnitee shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith concluded that there is a conflict of
interest between the Indemnitor and the Indemnitee in the conduct of the defense
of such action, (c) the Indemnitor fails, within ten (10) days prior to the date
the first response or appearance is required to be made in such Proceeding, to
assume the defense of such Proceeding with counsel reasonably satisfactory to
the Indemnitee or (d) there are legal defenses available to Indemnitee that are
different from or are in addition to those available to the Indemnitor. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent 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. Neither party shall have any
liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgment was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
SECTION 5.9 Charges of Depositary.
The Issuer agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Issuer from time to time. The Depositary shall present its statement for
such charges and expenses to the Issuer once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Issuer or Foreign Registrar and applicable to transfers of Shares to or from the
name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4 and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.1 through 4.4
hereof, to the extent permitted by the rules of any securities exchange on which
the American Depositary Shares may be listed for trading, (7) a fee for the
distribution of securities pursuant to Section 4.2, such fee being in an amount
equal to the fee for the execution and delivery of American Depositary Shares
referred to above which would have been charged as a result of the deposit of
such securities (for purposes of this clause 7 treating all such securities as
if they were Shares) but which securities are instead distributed by the
Depositary to Owners, and (8) any other charge payable by the Depositary, any of
the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.6 and shall be
payable at the sole discretion of the Depositary by billing such Owners for such
charge or by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.9 hereof, may own and deal in
any class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Issuer requests that such papers be retained for a longer period or turned over
to the Issuer or to a successor depositary.
SECTION 5.11 Exclusivity.
The Issuer agrees not to appoint any other depositary for issuance
of American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
The Issuer shall provide to the Depositary a list setting forth, to
the actual knowledge of the Issuer, those persons or entities who beneficially
own Restricted Securities as of the date hereof and the Issuer shall update that
list as changes occur. The Issuer agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities, so long as they
remain such, are ineligible for deposit hereunder. The Depositary may rely on
such a list or update but shall not be liable for any action or omission made in
reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Issuer and the Depositary without the consent of Owners and Beneficial
Owners in any respect which they may deem necessary or desirable. Any amendment
which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of thirty days after notice of such amendment
shall have been given to the Owners of outstanding Receipts. Every Owner and
Beneficial Owner at the time any amendment so becomes effective shall be deemed,
by continuing to hold such Receipt or any interest therein, to consent and agree
to such amendment and to be bound by the Deposit Agreement as amended thereby.
In no event shall any amendment impair the right of the Owner of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the Issuer
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Issuer and the
Owners of all Receipts then outstanding if at least 60 days shall have expired
since the Depositary shall have delivered to the Issuer a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in Section 5.4. On and after the date of
termination, the Owner of a Receipt will, upon (a) surrender of such Receipt at
the Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.5, and (c)
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges) and with respect to its obligations
pursuant to Section 5.8 hereof. Upon the termination of this Deposit Agreement,
the Issuer shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodian and shall
be open to inspection by any Owner or Beneficial Owner during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.3 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall
be parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof or any interest
therein.
SECTION 7.5 Notices.
Any and all notices to be given to the Issuer shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to CPFL Energia S.A., Xxx
Xxxxx Xxxxxxx 000-00 andar, 00000-000 X Xxx Xxxxx, XX, Xxxxxx, Attention: Chief
Financial Officer, or any other place to which the Issuer may have transferred
its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Issuer may, however, act upon any cable, telex
or facsimile transmission received by it, notwithstanding that such cable, telex
or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York.
SECTION 7.7 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Issuer and the Depositary each agrees that it will not exercise any rights
it has under this
Deposit Agreement to permit the withdrawal or delivery of Deposited Securities
in a manner which would violate the U.S. securities laws, including, but not
limited to, Section I.A.(1) of the General Instructions to the Form F-6
Registration Statement, as amended from time to time, under the Securities Act.
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Issuer hereby (i) irrevocably designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the State of
New York, as the Issuer's authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or this Deposit
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in the State of New York in which any such suit or proceeding may be
instituted, and (iii) agrees that service of process upon said authorized agent
shall be deemed in every respect effective service of process upon the Issuer in
any such suit or proceeding. The Issuer agrees to deliver, upon the execution
and delivery of this Deposit Agreement, a written acceptance by such agent of
its appointment as such agent. The Issuer further agrees to take any and all
action, including the filing of any and all such documents and instruments, as
may be necessary to continue such designation and appointment in full force and
effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Deposit Agreement remains in force. In the event the Issuer
fails to continue such designation and appointment in full force and effect, the
Issuer 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 Issuer 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.
SECTION 7.9 Waiver of Immunities.
To the extent that the Issuer or any of its properties, assets or
revenues may have or may hereafter become 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 any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Deposit Agreement, the Issuer,
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.
IN WITNESS WHEREOF, CPFL ENERGIA S.A. and THE BANK OF NEW YORK have
duly executed this Deposit Agreement as of the day and year first set forth
above and all Owners and Beneficial Owners shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof or any
interest therein.
CPFL ENERGIA S.A.
By:______________________________________
Name:
Title:
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:______________________________________
Name:
Title:
Exhibit A to Deposit Agreement
NO._________
AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY SHARE
REPRESENTS THREE (3) DEPOSITED SHARES)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR COMMON SHARES, WITH NO PAR VALUE, OF
CPFL ENERGIA S.A.
(INCORPORATED UNDER THE LAWS OF
THE FEDERATIVE REPUBLIC OF BRAZIL)
The Bank of New York as depositary (hereinafter called the
"Depositary"), hereby certifies that ________, or registered assigns IS THE
OWNER OF
AMERICAN DEPOSITARY SHARES
representing deposited common shares (herein called "Shares") of CPFL Energia
S.A., incorporated under the laws of the Federative Republic of Brazil (herein
called the "Issuer"). At the date hereof, each American Depositary Share
represents three (3) Shares which are either deposited or subject to deposit
under the deposit agreement at the City of Osasco, State of Sao Paulo, Brazil
office of Banco Bradesco S.A. (herein called the "Custodian"). The Depositary's
Corporate Trust Office is located at a different address than its principal
executive office. Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, and its principal executive office is located at Xxx Xxxx
Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of _______, 2004, as the same may be amended
from time to time in accordance with its terms (herein called the "Deposit
Agreement"), by and among the Issuer, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt or any interest therein agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and Beneficial Owners of the Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement and any
provisions of the Deposited Securities and other applicable laws, the Owner
hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) Shares in the name of the Owner hereof or as ordered
by him or by certificates properly endorsed or accompanied by proper instruments
of transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of this
Receipt to such Owner or as ordered by him. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may be suspended only for (i) temporary delays caused by closing the
transfer books of the Depositary or the Issuer or the deposit of Shares in
connection with voting at a shareholders' meeting, or the payment of dividends,
(ii) the payment of fees, taxes and similar charges, (iii) compliance with any
U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities or (iv) any other reason that may at the time be specified
in paragraph I(A)(1) of the General Instructions to Form F-6, as then in effect,
or any successor provision thereto.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof reasonably satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Depositary may establish consistent with any laws or
governmental regulations in Brazil or the United States relating to the
execution and delivery of Receipts or Shares or to the withdrawal of Deposited
Securities and the provisions of the Deposit Agreement or this Receipt,
including, without limitation, this Article 3.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Issuer are closed, or if any such action
is deemed necessary or advisable by the Depositary or the Issuer at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit Agreement
or this Receipt, or for any other reason, subject to Article (22) hereof.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under the Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act, unless a registration statement is
in effect as to such Shares. The Depositary will comply with the reasonable
written instructions of the Issuer that the Depositary will not accept for
deposit any Shares reasonably identified in such instructions to facilitate the
Issuer's compliance with United States or Brazilian securities laws.
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner hereof to
the Depositary. The Depositary may refuse to effect any transfer of this Receipt
or any withdrawal of Deposited Securities represented by American Depositary
Shares evidenced by such Receipt until such payment is made, and may withhold
any dividends or other distributions, or may sell for the account of the Owner
or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that (i) such Shares and each certificate
therefor, if applicable, are validly issued, fully paid, nonassessable and were
not issued in violation of any preemptive or similar rights of the holders of
outstanding Shares, (ii) such Shares are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim and (iii) the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
Receipts evidencing American Depositary Shares representing such Shares by that
person are not restricted under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of Receipts. If
any such representations and warranties are false in any way, the Issuer and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Issuer or
the Foreign Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper or as the Issuer may reasonably require by written request to the
Depositary consistent with its obligations under the Deposit Agreement. The
Depositary may, and at the reasonable written request of the Issuer shall,
withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made. The Depositary shall, upon the Issuer's
reasonable written request, as promptly as practicable, provide to the Issuer
copies of any such written proof or information that it receives, unless that
disclosure is
prohibited by applicable law. The Issuer may from time to time request Owners
to provide information as to the capacity in which such Owners hold Receipts and
regarding the identity of any other persons then interested in such Receipts and
the nature of such interest. Each Owner agrees to provide any information
reasonably requested by the Issuer or the Depositary pursuant to Section 3.1 of
the Deposit Agreement. No Share shall be accepted for deposit unless accompanied
by evidence reasonably satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in Brazil that is then
performing the function of the regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Issuer agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. The Depositary shall present its statement for such charges and
expenses to the Issuer once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Issuer or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the Deposit
Agreement, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in the Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section 4.5,
(5) a fee of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the execution and delivery of Receipts pursuant to Section 2.3, 4.3
or 4.4 of the Deposit Agreement and the surrender of Receipts pursuant to
Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee of $.02 or less per
American Depositary Share (or portion thereof) for any cash distribution made
pursuant to the Deposit Agreement, including, but not limited to Sections 4.1
through 4.4 of the Deposit Agreement, to the extent permitted by the rules of
any securities exchange on which the American Depositary Shares may be listed
for trading, (7) a fee for the distribution of securities pursuant to Section
4.2 of the Deposit Agreement, such fee being in an amount equal to the fee for
the execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were Shares)
but which securities are instead distributed by the Depositary to Owners, and
(8) any other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.6 of the
Deposit Agreement and shall be payable at the sole discretion of the Depositary
by billing such Owners for such charge or by deducting such charge from one or
more cash dividends or other cash distributions).
The Depositary, subject to Section 2.9 of the Deposit Agreement, may own
and deal in any class of securities of the Issuer and its affiliates and in
Receipts.
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered that such person, or its customer, owns the Shares or
Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement;
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 compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement and for all other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by the manual or facsimile signature of
a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Issuer is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Issuer. The
Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports furnished by the Issuer pursuant to the Deposit
Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Issuer shall be
furnished in English, to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts, provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Issuer or
a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if at the time
of receipt thereof any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into Dollars and shall distribute the
amount thus received (net of the fees and expenses of the Depositary as provided
in the Deposit Agreement, if applicable) to the Owners of Receipts entitled
thereto, provided, however, that in the event that the Issuer or the
Depositary shall be required to withhold and does withhold from such cash
dividend or such other cash distribution in respect of any Deposited Securities
an amount on account of taxes, the amount distributed to the Owners of the
Receipts evidencing American Depositary Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall, as promptly as practicable after consultation with the Issuer,
cause the securities or property received by it to be distributed to the Owners
of Receipts entitled thereto, after deduction or upon payment of any fees and
expenses of the Depositary or any taxes or other governmental charges, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, in any manner that the
Depositary may reasonably deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the reasonable opinion of the
Depositary such distribution cannot be made proportionately among the Owners of
Receipts entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may, after consultation with the
Issuer, adopt such method as it may deem equitable and practicable for the
purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement) shall be
distributed by the Depositary to the Owners of Receipts entitled thereto as in
the case of a distribution received in cash; provided that any unsold balance of
such securities or property shall be distributed by the Depositary to the Owners
entitled thereto, if such distribution is feasible without withholding for or on
account of any taxes or other governmental charges and without registration
under the Securities Act, in accordance with such equitable and practicable
methods as the Depositary may have adopted; provided, further, that no
distribution to Owners pursuant to Section 4.2 of the Deposit Agreement shall be
unreasonably delayed by any action of the Depositary. To the extent such
property, or the net proceeds thereof, is not effectively distributed to Owners
as provided herein, the same shall constitute Deposited Securities and each
Receipt shall thereafter also represent its proportionate interest in such
property or net proceeds..
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the Issuer
shall so request, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided
in Section 4.11 of the Deposit Agreement and the payment of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, if any, all in the manner and
subject to the conditions set forth in the Deposit Agreement. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. Notwithstanding the foregoing, in the event that
the Depositary determines that a distribution in Shares may not be legally made
to some or all Owners, the Depositary may sell such Shares and shall remit the
net proceeds thereof, if any, after deduction of the Depositary's fees and
expenses as provided in Section 5.9 of the Deposit Agreement, to the Owners
entitled thereto as in the case of a distribution in cash.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may, after consultation with the Company to the extent practical,
by public or private sale dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner as the Depositary deems necessary and practicable to pay any such taxes
or charges and the Depositary shall distribute the net proceeds of any such sale
after deduction of such taxes or charges to the Owners of Receipts entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively. The Depositary will forward to the Issuer or its agent such
information from its records as the Issuer may reasonably request to enable the
Issuer or its agent to file necessary reports with governmental authorities or
agencies. The Depositary, the Custodian or the Issuer or any of their agents may
file such reports as are necessary to reduce or eliminate applicable taxes on
dividends and other distributions in respect of Deposited Securities and to
obtain other benefits under any applicable tax treaties for the Owners following
the review and approval of such reports by the Issuer and its advisors.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall, as promptly as practicable, convert or
cause to be converted, by sale or in any other manner that it may determine,
such foreign currency into Dollars, and such Dollars shall be distributed to the
Owners entitled thereto or, if the Depositary shall have distributed any
warrants or other instruments which entitle the holders thereof to such Dollars,
then to the holders of such warrants and/or instruments upon surrender thereof
for cancellation. Such distribution
may be made upon an averaged or other practicable basis without regard to any
distinctions among Owners on account of exchange restrictions, the date of
delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the reasonable opinion of the Depositary is not
obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Issuer, shall, subject to Brazilian law and the provisions
of the Issuer's by-laws as notified to the Depositary by the Issuer, have
discretion as to the procedure to be followed in making such rights available to
any Owners or in disposing of such rights on behalf of any Owners and making the
net proceeds available to such Owners or, if by the terms of such rights
offering or for any other reason, the Depositary may not either make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines in its
reasonable discretion that it is lawful and feasible to make such rights
available to all Owners or to certain Owners but not to other Owners, the
Depositary may distribute, to any Owner to whom it reasonably determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Issuer to the Depositary
that (a) the Issuer has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Issuer has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all Owners or to certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Issuer shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of the Deposit Agreement, and shall, pursuant
to Section 2.3 of the Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
Article, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all Owners or to certain Owners, it
may sell the rights, warrants or other instruments in proportion to the number
of American Depositary Shares held by the Owners to whom it has determined it
may not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.9 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of the Deposit Agreement) for the account of such Owners otherwise
entitled to such rights, warrants or other instruments, upon an averaged or
other practical basis without regard to any distinctions among such Owners
because of exchange restrictions or the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to Owners or are
registered under the
provisions of the Securities Act. Nothing in the Deposit Agreement shall create
any obligation on the part of the Issuer to file a registration statement with
respect to such rights or underlying securities or to endeavor to have such a
registration statement declared effective. If an Owner of Receipts requests
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such the Securities Act, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Issuer upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date, which date shall, to the extent practicable, be the
same date as, or as near as practicable to, the record date (if any) applicable
to the Deposited Securities (a) for the determination of the Owners of Receipts
who shall be (i) entitled to receive such dividend, distribution or rights or
the net proceeds of the sale thereof or (ii) entitled to give instructions for
the exercise of voting rights at any such meeting, or (b) on or after which each
American Depositary Share will represent the changed number of Shares, subject
to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting or solicitation of proxies or
consents of holders of Shares or other Deposited Securities, if requested in
writing by the Issuer, the Depositary shall, as soon as practicable thereafter,
mail to the Owners of Receipts a notice, the form of which notice shall be in
the sole discretion of the Depositary, which shall contain (a) such information
as is contained in such notice of meeting received by the Depositary from the
Issuer, (b) a statement that the Owners of Receipts as of the close of business
on a specified record date will be entitled, subject to any applicable provision
of the laws of Brazil and of the Estatuto Social, to instruct the Depositary as
to the exercise of the voting rights, if any, pertaining to the amount of Shares
or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated to the Issuer. Upon the written
request of an Owner of a
Receipt on such record date, received on or before the date established by the
Depositary for such purpose (the "Instruction Date"), the Depositary shall
endeavor, in so far as practicable to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary shall not vote or attempt to exercise the right
to vote that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions or deemed instructions. If no instructions are
received by the Depositary from any Owner with respect to any of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Owner's Receipts on or before the date established by the Depositary for such
purpose, the Depositary shall deem such Owner to have instructed the Depositary
to give a discretionary proxy to a person designated by the Issuer with respect
to such Deposited Securities and the Depositary shall give a discretionary proxy
to a person designated by the Issuer to vote such Deposited Securities,
provided, that no such instruction shall be given with respect to any matter as
to which the Issuer informs the Depositary (and the Issuer agrees to provide
such information as promptly as practicable in writing) that (x) the Issuer does
not wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Issuer or to which it is a party, any securities which
shall be received by the Depositary or the Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
if any, the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence. In
any such case the Depositary may, and shall if the Issuer shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE ISSUER AND DEPOSITARY.
Neither the Depositary nor the Issuer nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner
of any Receipt if, by reason of any provision of any present or future law or
regulation of the United States or any other country, or of any governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Estatuto Social, or by reason of any provision of any
securities issued or distributed by the Issuer, or any offering or distribution
thereof or by reason of any act of God or war or terrorism or other
circumstances beyond its control, the Depositary or the Issuer shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of the Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary or the Issuer or any of their respective
directors, employees, agents or affiliates incur any liability to any Owner or
Beneficial Owner of a Receipt by reason of any non-performance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.1, 4.2 or 4.3 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Issuer nor the Depositary nor any
of their respective directors, officers, employees, agents or affiliates assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Beneficial Owners of Receipts, except that each of the Issuer and
the Depositary agrees to perform its respective obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth of
the Deposited Securities. Neither the Depositary nor the Issuer nor any of their
respective directors, officers, employees, agents or affiliates shall be under
any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Issuer nor any of
their respective directors, officers, employees, agents or affiliates shall be
liable for any action or nonaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
Neither the Issuer nor the Depositary shall be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is in good faith. The Issuer agrees to
indemnify the Depositary, its directors, employees, agents and affiliates and
the Custodian against, and hold each of them harmless from, any liability or
expense (including, but not limited to, the fees and expenses of counsel) which
may arise out of any registration with the Commission of Receipts, American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or the Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of any of them, or (ii) by the Issuer or any of its directors,
employees, agents and affiliates. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement written notice of its election so to do delivered to the Issuer, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement and the
receipt of any required approvals of the Brazilian National Securities
Commission. The Depositary may at any time be removed by the Issuer by 60 days
prior written notice of such removal, which shall become effective upon the
later to occur of the (i) 60th day after delivery of the notice to the
Depositary or (ii) the appointment of a successor depositary and its acceptance
of such appointment as provided in the Deposit Agreement and the receipt of any
required approvals of the Brazilian National Securities Commission. Whenever the
Depositary in its discretion determines that it is in the best interest of the
Owners of Receipts to do so, it may appoint a substitute custodian.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Issuer and
the Depositary without the consent of Owners and Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner and Beneficial Owner of a Receipt at the time any
amendment so becomes effective shall be deemed, by continuing to hold such
Receipt or
any interest therein, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby. In no event shall any amendment impair
the right of the Owner of any Receipt to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Issuer terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Issuer and the Owners of
all Receipts then outstanding if at least 60 days shall have expired since the
Depositary shall have delivered to the Issuer a written notice of its election
to resign and a successor depositary shall not have been appointed and accepted
its appointment as provided in the Deposit Agreement. On and after the date of
termination, the Owner of a Receipt will, upon (a) surrender of such Receipt at
the Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.5 of the
Deposit Agreement and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges). At any time after the expiration
of one year from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it thereunder, unsegregated and without liability for interest, for the
pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the
Deposit Agreement, and any applicable taxes or governmental charges) and with
respect to its obligations pursuant to Section 5.8 of the Deposit Agreement.
Upon the termination of the Deposit Agreement, the Issuer shall be discharged
from all obligations under the Deposit Agreement except for its obligations to
the Depositary under Sections 5.8 and 5.9 of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Issuer and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to permit the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
23. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Issuer hereby (i) irrevocably designates and appoints CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the State of New York,
as the Issuer's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or the Deposit Agreement, (ii) consents
and submits to the jurisdiction of any state or federal court in the State of
New York in which any such suit or proceeding may be instituted, and (iii)
agrees that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Issuer in any such suit or
proceeding. The Issuer agrees to deliver, upon the execution and delivery of the
Deposit Agreement, a written acceptance by such agent of its appointment as such
agent. The Issuer further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or the Deposit
Agreement remains in force. In the event the Issuer fails to continue such
designation and appointment in full force and effect, the Issuer 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 Issuer 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.
24. WAIVER OF IMMUNITIES.
To the extent that the Issuer or any of its properties, assets or revenues
may have or may hereafter become 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
any other matter under or arising out of or in connection with the Shares or
Deposited Securities, the American Depositary Shares, the Receipts or the
Deposit Agreement, the Issuer, 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.
25. DELIVERY OF INFORMATION TO THE CVM.
Each of the Depositary and the Issuer hereby confirms to the other that
for as long as the Deposit Agreement is in effect, it shall furnish the CVM and
the Central Bank of Brazil, at any time and within the period that may be
determined, with any information and documents related to the American
Depositary Receipt program and the Receipts issued under the Deposit Agreement.
In the event that the Depositary or the Custodian shall be advised in writing by
reputable independent Brazilian counsel that the Depositary or Custodian
reasonably could be subject to criminal, or material, as reasonably determined
by the Depositary, civil, liabilities as a result of the Issuer having failed to
provide such information or documents reasonably available only through the
Issuer, the Depositary shall have the right to terminate the Deposit Agreement,
upon at least 15 days' prior written notice to the Owners and the Issuer, and
the Depositary shall not be subject to any liability thereunder on account of
such termination or such determination. The effect of any such termination of
the Deposit Agreement shall be as provided in Section 6.2 of the Deposit
Agreement.
26. OWNERSHIP RESTRICTIONS.
Owners and Beneficial Owners shall comply with any limitations on
ownership of Shares under the Estatuto Social or applicable Brazilian law and
regulations as if they held the number of Shares their American Depositary
Shares represent. If the Estatuto Social or applicable Brazilian law and
regulations are changed (i) to require disclosure to the Issuer of beneficial or
other ownership of Deposited Securities or other securities or to limit
ownership of those securities or (ii) to provide for blocking of transfer,
voting or other rights to enforce disclosure or ownership limitations referred
to in clause (i), the Depositary shall use its reasonable efforts to comply with
the Issuer's written instructions as to Receipts in respect of any such
enforcement or limitation or blocking of rights, and Owners and Beneficial
Owners shall comply with all such disclosure requirements and ownership
limitations and shall cooperate with the Depositary's compliance with such
instructions and are deemed by holding Receipts or any interest in them to
consent to any such limitation or blocking of rights.
