AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1, dated
as
of June [ ], 2007 (the “Amendment”), to the Deposit Agreement dated as of
January 2, 2007 (as amended hereby, the “Deposit Agreement”), among Petróleo
Brasileiro S.A.- PETROBRAS, incorporated under the laws of Federative Republic
of Brazil (the “Company”), JPMorgan Chase Bank, N.A., as depositary (the
“Depositary”), and all holders from time to time of American depositary receipts
(“ADRs”) issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR contained in the Deposit
Agreement, the Company and the Depositary desire to amend the terms of the
Deposit Agreement and ADRs.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
1
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01. All
references in the Deposit Agreement to the term “Deposit Agreement” shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement, dated
as
of January 2, 2007 as amended by this Amendment.
SECTION
2.02. Section
1(c) of the Deposit Agreement is amended by replacing "four" with
"two".
ARTICLE
III
AMENDMENTS
TO THE FORM OF ADR
SECTION
3.01. All
references in the form of ADR to the number of Shares represented
by each ADS is amended to reflect that each ADS represents two
Shares.
SECTION
3.03. The
form
of ADR, reflecting the amendments set forth herein, is amended
and restated to read as set forth as Exhibit A hereto.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in the Federative Republic of Brazil, nor does any stamp or similar
tax or governmental charge need to be paid in the Federative Republic of Brazil
on or in respect of such agreements.
ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
the
close of business New York time on July 2, 2007 (the “Effective
Date”).
2
SECTION
5.02. Outstanding
ADRs.
ADRs
issued prior or subsequent to the date hereof, which do not reflect the changes
to the form of ADR effected hereby, do not need to be called in for exchange
and
may remain outstanding until such time as the Holders thereof choose to
surrender them for any reason under the Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION
5.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any and
all
liability it or they may incur as a result of the terms of this Amendment and
the transactions contemplated herein.
SECTION
5.04. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
deemed an original and all of which taken together shall constitute one
instrument.
3
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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PETRÓLEO
BRASILEIRO S. A. - PETROBRAS
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By:
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_____________________
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By
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:_____________________
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Name:
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Title
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4
EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
[FORM
OF
FACE OF ADR]
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____
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No.
of ADSs:
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Number
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Each
ADS represents
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Two
Shares
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CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
PREFERRED
SHARES
of
PETRÓLEO
BRASILEIRO S. A. - PETROBRAS
(Incorporated
under the laws of The Federative Republic of Brazil)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States of America , as depositary hereunder (the "Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing two
preferred shares (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of PETRÓLEO BRASILEIRO S. A. - PETROBRAS, a
corporation organized under the laws of The Federative Republic of Brazil (the
"Company"), deposited under the Amended and Restated Deposit Agreement dated
as
of January 2, 2007 (as amended from time to time, the "Deposit Agreement")
among
the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an
ADR
becomes a party thereto. The Deposit Agreement and this ADR (which includes
the
provisions set forth on the reverse hereof) shall be governed by and construed
in accordance with the laws of the State of New York.
1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions; or, (c) unless requested in writing
to cease doing so at least two business days prior to the proposed deposit,
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released
ADRs
are fully collateralized (marked to market daily) with cash, government
securities or such other collateral as the Depositary deems appropriate held
by
the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient or
its
customer (a) beneficially owns such Shares, (b) assigns all beneficial right,
title and interest therein to the Depositary, (c) holds such Shares for the
account of the Depositary and (d) will deliver such Shares to the Custodian
as
soon as practicable and promptly upon demand therefor and (iii) all Pre-released
ADRs evidence not more than 20% of all ADSs (excluding those evidenced by
Pre-released ADRs). The Depositary may retain for its own account any earnings
on collateral for Pre-released ADRs and its charges for issuance thereof. At
the
request, risk and expense of the person depositing Shares, the Depositary may
accept deposits for forwarding to the Custodian and may deliver ADRs at a place
other than its office. Every person depositing Shares under the Deposit
Agreement represents and warrants that such Shares are validly issued and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that
the
person making such deposit is duly authorized so to do and that such Shares
(A)
are not "restricted securities" as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the United States or (B) have been registered under the Securities
Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs. The Depositary will not knowingly accept for deposit
under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for
such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at, or to the extent in dematerialized
form from, the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities
at
such other place as may have been requested by the Holder. Notwithstanding
any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office (the
"Transfer Office"), (a) a register (the "ADR Register") for the registration,
registration of transfer, combination and split-up of ADRs, and, in the case
of
Direct Registration ADRs, shall include the Direct Registration System, which
at
all reasonable times will be open for inspection by Holders and the Company
for
the purpose of communicating with Holders in the interest of the business of
the
Company or a matter relating to the Deposit Agreement and (b) facilities for
the
delivery and receipt of ADRs. The term ADR Register includes the Direct
Registration System. Title to this ADR (and to the Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed (in the case
of ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer, is transferable by delivery with the same effect as
in
the case of negotiable instruments under the laws of the State of New York;
provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have
any
obligation or be subject to any liability under the Deposit Agreement to any
holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may
be
split into other ADRs or combined with other ADRs into one ADR, evidencing
the
aggregate number of ADSs surrendered for split-up or combination, by the Holder
hereof or by duly authorized attorney upon surrender of this ADR at the Transfer
Office properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer and duly stamped
as
may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity of any signatory
and genuineness of any signature and (ii) such other information, including
without limitation, information as to citizenship, residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations, provisions of or governing Deposited Securities and terms
of
the Deposit Agreement and this ADR, as it may deem necessary or proper; and
(c)
compliance with such regulations as the Depositary may establish consistent
with
the Deposit Agreement and any regulations which the Depositary is informed
of in
writing by the Company which are deemed desirable by the Depositary, the Company
or the Custodian to facilitate compliance with any applicable rules or
regulations of the Banco Central do Brasil or Comissão de Valores Mobiliários.
The issuance of ADRs, the acceptance of deposits of Shares, the registration,
registration of transfer, split-up or combination of ADRs or, subject to the
last sentence of paragraph (2), the withdrawal of Deposited Securities may
be
suspended, generally or in particular instances, when the ADR Register or any
register for Deposited Securities is closed or when any such action is deemed
advisable by the Depositary or, in order to comply with applicable law, by
the
Company.
3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to
any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction
of
such taxes to the Holders entitled thereto. Each Holder of an ADR or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective directors, employees, agents and affiliates against, and
hold each of them harmless from, any claims by any governmental authority with
respect to taxes, additions to tax, penalties or interest arising out of any
refund of taxes, reduced rate of withholding at source or other tax benefit
obtained.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Shares and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to comply with any reasonable Company
instructions in respect thereof. The Company reserves the right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so as to permit the Company to deal directly with the Holder thereof
as a holder of Shares and Holders agree to comply with such instructions. The
Depositary agrees to cooperate with the Company in its efforts to inform Holders
of the Company's exercise of its rights under this paragraph and agrees to
consult with, and provide reasonable assistance without risk, liability or
expense on the part of the Depositary, to the Company on the manner or manners
in which it may enforce such rights with respect to any Holder.
4
(7)
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced,
cancelled or surrendered (as the case may be). The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit
to
pay such charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company
or
an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i)
a
fee of U.S.$0.02 or less per ADS (or portion thereof) for any Cash distribution
made pursuant to the Deposit Agreement, (ii) to the extent not prohibited by
the
rules of the primary stock exchange upon which the ADSs are listed, a fee of
U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution or sale of securities pursuant to paragraph
(10) hereof, such fee being in an amount equal to the fee for the execution
and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (7) treating
all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, (iv)
a
fee of U.S.$0.02 per ADS (or portion thereof) in each calendar year for the
services performed by the Depositary in administering the ADRs (which fee shall
be assessed against Holders as of the record date or dates set by the Depositary
not more than once each calendar year and shall be payable at the sole
discretion of the Depositary by billing such Holders or by deducting such charge
from one or more cash dividends or other cash distributions), and (v) such
fees
and expenses as are incurred by the Depositary (including without limitation
expenses incurred on behalf of Holders in connection with compliance with
foreign exchange control regulations or any law or regulation relating to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees
for
the registration or transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary’s agents, including, without limitation, the Custodian, or
the agents of the Depositary’s agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the Depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
5
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and accordingly files certain reports with
the
United States Securities and Exchange Commission (the "Commission"). Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at 000 X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
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JPMORGAN
CHASE BANK, N.A., as Depositary
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By
..................................................
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Authorized
Officer
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The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the
extent
practicable, the Depositary will distribute to each Holder entitled thereto
on
the record date set by the Depositary therefor at such Holder's address shown
on
the ADR Register, in proportion to the number of Deposited Securities (on which
the following distributions on Deposited Securities are received by the
Custodian) represented by ADSs evidenced by such Holder's ADRs:
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(a)
Cash.
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Any
U.S. dollars available to the Depositary resulting from a cash dividend
or
other cash distribution or the net proceeds of sales of any other
distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i)
appropriate adjustments for taxes withheld, (ii) such distribution
being
impermissible or impracticable with respect to certain Holders, and
(iii)
deduction of the Depositary's expenses in (1) converting any foreign
currency to U.S. dollars by sale or in such other manner as the Depositary
may determine to the extent that it determines that such conversion
may be
made on a reasonable basis, (2) transferring foreign currency or
U.S.
dollars to the United States by such means as the Depositary may
determine
to the extent that it determines that such transfer may be made on
a
reasonable basis, (3) obtaining any approval or license of any
governmental authority required for such conversion or transfer,
which is
obtainable at a reasonable cost and within a reasonable time and
(4)
making any sale by public or private means in any commercially reasonable
manner. If the Company shall have advised the Depositary pursuant
to the
provisions of the Deposit Agreement that any such conversion, transfer
or
distribution can be effected only with the approval or license of
the
Brazilian government or any agency thereof or the Depositary shall
become
aware of any other governmental approval or license required therefor,
the
Depositary may, in its reasonable discretion, apply for such approval
or
license, if any, as the Company or its Brazilian counsel may reasonably
instruct in writing or as the Depositary may deem desirable including,
without limitation, Central Bank registration.
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(b)
Shares.
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(i)
Additional ADRs evidencing whole ADSs representing any Shares available
to
the Depositary resulting from a dividend or free distribution on
Deposited
Securities consisting of Shares (a "Share Distribution") and (ii)
U.S.
dollars available to it resulting from the net proceeds of sales
of Shares
received in a Share Distribution, which Shares would give rise to
fractional ADSs if additional ADRs were issued therefor, as in the
case of
Cash.
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(c)
Rights.
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(i)
Warrants or other instruments in the discretion of the Depositary
representing rights to acquire additional ADRs in respect of any
rights to
subscribe for additional Shares or rights of any nature available
to the
Depositary as a result of a distribution on Deposited Securities
("Rights"), to the extent that the Company timely furnishes to the
Depositary evidence satisfactory to the Depositary that the Depositary
may
lawfully distribute the same (the Company has no obligation to so
furnish
such evidence), or (ii) to the extent the Company does not so furnish
such
evidence and sales of Rights are practicable, any U.S. dollars available
to the Depositary from the net proceeds of sales of Rights as in
the case
of Cash, or (iii) to the extent the Company does not so furnish such
evidence and such sales cannot practicably be accomplished by reason
of
the nontransferability of the Rights, limited markets therefor, their
short duration or otherwise, nothing (and any Rights may
lapse).
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7
(d)
Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions
and
Rights ("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions as in the case of Cash.
Such
U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Fractional cents will be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices. Subject to the other provisions hereof and of the Deposit Agreement,
the Depositary shall cause any Cash distribution that is paid in a currency
other than U.S. dollars to be converted into U.S. dollars as promptly as
reasonably practicable under the circumstances after the receipt thereof.
(11)
Record
Dates.
The
Depositary may or shall if required, in each case after consultation with the
Company if practicable, fix a record date (which, to the extent applicable,
shall be as near as practicable to any corresponding record date set by the
Company) for the determination of the Holders who shall be responsible for
the
fee assessed by the Depositary for administration of the ADR program and for
any
expenses provided for in paragraph (7) hereof as well as for the determination
of the Holders who shall be entitled to receive any distribution on or in
respect of Deposited Securities, to give instructions for the exercise of any
voting rights, to receive any notice or to act in respect of other matters
and
only such Holders shall be so entitled or obligated.
(12)
Voting
of Deposited Securities.
Under
the Brazilian Corporate Law (Law 6404 of December 15, 1976) and the by-laws
of
the Company on the date of the Deposit Agreement, the Shares have general voting
rights only so long as the Company has failed for three consecutive fiscal
years
to pay a minimum dividend on the Shares of 25% of the Company's net profits;
otherwise the Shares have no voting rights in respect of any matters except
changes to the Company's capital structure which adversely affect the Shares.
As
soon as practicable after receipt from the Company of notice of any meeting
or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall distribute to Holders a notice stating (a)
such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will, subject
to any applicable provisions of Brazilian law, rule and/or regulation be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the ADSs evidenced
by
such Holder's ADRs and (c) the manner in which such instructions may be given,
including instructions to give a discretionary proxy to a person designated
by
the Company. Upon receipt of instructions of a Holder on such record date in
the
manner and on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be voted
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
in
accordance with such instructions. The Depositary will not itself exercise
any
voting discretion in respect of any Deposited Securities.
8
To
the
extent such instructions are not so received by the Depositary from any Holder,
the Depositary shall take such action as is necessary, upon the written request
of the Company and subject to applicable law, and the terms and conditions
of
the Deposited Securities, to cause such underlying Shares to be counted for
the
purposes of satisfying applicable quorum requirements;
There
can be no assurance that Holders generally or any Holder in particular will
receive the notice described above with sufficient time to enable such Holder
to
return voting instructions to the Depositary in a timely
manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its reasonable discretion,
amend this ADR or distribute additional or amended ADRs (with or without calling
this ADR for exchange) or cash, securities or property on the record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any Share Distribution or Other Distribution not distributed to Holders or
any
cash, securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and, irrespective of whether such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule,
regulation or otherwise, to sell by public or private sale any property received
in connection with) any recapitalization, reorganization, merger, consolidation,
liquidation, receivership, bankruptcy or sale of all or substantially all the
assets of the Company, and to the extent the Depositary does not so amend this
ADR or make a distribution to Holders to reflect any of the foregoing, or the
net proceeds thereof, whatever cash, securities or property results from any
of
the foregoing shall constitute Deposited Securities and each ADS evidenced
by
this ADR shall automatically represent its pro rata interest in the Deposited
Securities as then constituted.
9
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule or regulation of the United
States, The Federative Republic of Brazil or any other country, or of any
governmental or regulatory authority or any securities exchange or market or
automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act
of
God, war, terrorism or other circumstance beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strike, civil unrest, revolutions, rebellions, explosions and computer
failure) shall prevent, delay or subject to any civil or criminal penalty
any act which the Deposit Agreement or this ADR provides shall be done or
performed by
it or
them (including, without limitation, voting pursuant to paragraph (12) hereof),
or (ii) by reason of any exercise or failure to exercise any discretion given
it
in the Deposit Agreement or this ADR; (b) assume no liability except to perform
its obligations to the extent they are specifically set forth in this ADR and
the Deposit Agreement without gross negligence or bad faith; (c) in the case
of
the Depositary and its agents, be under no obligation to appear in, prosecute
or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, its agents and the Company may
rely
and shall be protected in acting upon any written notice, request, direction
or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will
not
be responsible for any failure to carry out any instructions to vote any of
the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote. The Depositary may rely upon instructions from the
Company or its Brazilian counsel in respect of any approval or license of the
Brazilian government or any agency thereof required for any currency conversion,
transfer or distribution. The Depositary and its agents may own and deal in
any
class of securities of the Company and its affiliates and in ADRs.
Notwithstanding anything to the contrary set forth in the Deposit Agreement
or
an ADR, the Depositary and its agents may fully respond to any and all demands
or requests for information maintained by or on its behalf in connection with
the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise
related hereto to the extent such information is requested or required by or
pursuant to any lawful authority, including without limitation laws, rules,
regulations, administrative or judicial process, banking, securities or other
regulators. The Company has agreed to indemnify the Depositary and its agents
under certain circumstances and the Depositary has agreed to indemnify the
Company under certain circumstances. Neither the Company nor the Depositary
nor
any of their respective agents shall be liable to Holders or beneficial owners
of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by 60 days prior written notice of its
election so to do delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The Depositary may
at any time be removed by the Company by no less than 60 days prior written
notice of such removal, to become effective upon the later of (i) the 60th
day
after delivery of the notice to the Depositary and (ii) the appointment of
a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement. The Depositary may appoint substitute or additional
Custodians and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
10
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may
be
amended by the Company and the Depositary, provided
that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other
such
expenses), or that shall otherwise prejudice any substantial existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time any amendment
to the Deposit Agreement so becomes effective shall be deemed, by continuing
to
hold such ADR, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair
the
right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order
for
(a) the ADSs to be registered on Form F-6 under the Securities Act of 1933
or
(b) the ADSs or Shares to be traded solely in electronic book-entry form and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders. Notwithstanding the foregoing, if any governmental body or regulatory
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the ADR at any time in accordance with such changed laws, rules
or
regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance.
(17)
Termination.
The
Depositary may, and shall at the written direction of the Company, terminate
the
Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination; provided, however, if the Depositary shall have (i) resigned as
Depositary hereunder, notice of such termination by the Depositary shall not
be
provided to Holders unless a successor depositary shall not be operating
hereunder within 60 days of the date of such resignation, and (ii) been removed
as Depositary hereunder, notice of such termination by the Depositary shall
not
be provided to Holders unless a successor depositary shall not be operating
hereunder on the 60th
day
after the Company's notice of removal was first provided to the Depositary.
After the date so fixed for termination, the Depositary and its agents will
perform no further acts under the Deposit Agreement and this ADR, except to
receive and hold (or sell) distributions on Deposited Securities and deliver
Deposited Securities being withdrawn. As soon as practicable after the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations to in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and for its obligations to the Company under Section 16 of the Deposit
Agreement. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents (including, without limitation,
those under Section 16 of the Deposit Agreement).
11
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance of any
ADSs
(or any interest therein) issued in accordance with the terms and conditions
of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to
and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and
(b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to
act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary may
deem
necessary or appropriate under the Deposit Agreement to carry out the purposes
of the Deposit Agreement and the applicable ADR(s), the taking of such actions
to be the conclusive determinant of the necessity and appropriateness
thereof.
12
