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COMPANHIA ENERGETICA DE MINAS GERAIS - CEMIG
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED AND
OUTSTANDING UNDER THE TERMS OF THE
SECOND AMENDED AND RESTATED
DEPOSIT AGREEMENT, DATED AS OF AUGUST 10, 2001
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Amendment No. 1 to Second Amended and Restated Deposit Agreement
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Dated as of [Month][Date], 2007
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS....................................................................2
SECTION 1.01. Definitions...............................................2
SECTION 1.02. Effective Date............................................2
ARTICLE II
AMENDMENTS TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT....................3
SECTION 2.01. Deposit Agreement.........................................3
SECTION 2.02. Amendments Binding on all Holders and Beneficial Owners...3
SECTION 2.03. Change of Shares to ADS Ratio.............................3
SECTION 2.04. Direct Registration System................................4
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................8
SECTION 3.01. ADR Amendment.............................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................9
SECTION 4.01. Representations and Warranties............................9
ARTICLE V
MISCELLANEOUS.................................................................10
SECTION 5.01. New ADRs.................................................10
SECTION 5.02 Indemnification..........................................10
SECTION 5.03. Ratification.............................................10
SECTION 5.04. Governing Law............................................11
SECTION 5.05. Counterparts.............................................11
EXHIBIT A
FORM OF RECEIPT..............................................................A-1
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT dated as
of [Month][Date], 2007 (the "Amendment"), by and among (i) Companhia Energetica
de Minas Generais - CEMIG, which makes its filing with the United States
Securities and Exchange Commission (the "Commission") under the English name
Energy Co of Minas Gerais and is a company organized and existing under the laws
of the Federative Republic of Brazil (the "Company"), (ii) Citibank, N.A., a
national banking association organized under the laws of the United States of
America (the "Depositary"), and (iii) all Holders and Beneficial Owners from
time to time of American Depositary Shares evidenced by American Depositary
Receipts issued and outstanding under the Second Amended and Restated Deposit
Agreement, dated as of August 10, 2001.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Second
Amended and Restated Deposit Agreement, dated as of August 10, 2001 (the "Second
Amended and Restated Deposit Agreement"), for the creation of American
Depositary Shares ("ADSs") representing the Shares (as defined in the Second
Amended and Restated Deposit Agreement) so deposited and for the execution and
delivery of American Depositary Receipts ("ADRs") in respect of the American
Depositary Shares; and
WHEREAS, the ADSs are listed for trading on The New York Stock Exchange
("NYSE") and the NYSE will require that securities listed on the NYSE become
eligible for the Direct Registration System (the "DRS"); and
WHEREAS, the Company has changed the Share-to-ADS ratio from 1,000 Shares
to one (1) ADS to one (1) Share to one (1) ADS;
WHEREAS, the Company has changed the par value of its Shares from R$0.01
per Share to R$5.00 per Share; and
WHEREAS, the Company and the Depositary desire to (i) amend the Second
Amended and Restated Deposit Agreement, the ADRs currently outstanding and the
form of ADR annexed to the Second Amended and Restated Deposit Agreement as
Exhibit A thereto to make ADSs eligible for the DRS, (ii) amend the Second
Amended and Restated Deposit Agreement, the ADRs currently outstanding and the
form of ADR annexed to the Second Amended and Restated Deposit Agreement as
Exhibit A thereto to reflect the change in Share-to-ADS ratio and (iii) amend
the Second Amended and Restated Deposit Agreement, the ADRs currently
outstanding and the form of ADR annexed to the Second Amended and Restated
Deposit Agreement as Exhibit A thereto to reflect the change in the par value of
the Company's Shares; and
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 Second Amended and Restated Deposit Agreement, the
ADRs currently outstanding and the form of ADR annexed as Exhibit A to the
Second Amended and Restated Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Second Amended and Restated Deposit Agreement.
SECTION 1.02. Effective Date. The term "Effective Date" shall mean the
date set forth above and as of which this Amendment shall become effective.
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ARTICLE II
AMENDMENTS TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Second Amended and
Restated Deposit Agreement to the term "Deposit Agreement" shall, as of the
Effective Date, refer to the Second Amended and Restated Deposit Agreement, as
amended by this Amendment and as further amended and supplemented from time to
time after the Effective Date in accordance with the terms of the Second Amended
and Restated Deposit Agreement.
SECTION 2.02. Amendments Binding on all Holders and Beneficial Owners.
From and after the Effective Date, the amendments to the Second Amended and
Restated Deposit Agreement effected hereby shall be binding on all Holders and
Beneficial Owners of ADSs issued and outstanding as of the Effective Date and on
all Holders and Beneficial Owners of ADSs issued after the Effective Date.
Notwithstanding any other provision contained herein, in the Second Amended and
Restated Deposit Agreement or in any ADR, from and after the Effective Date any
reference in the Second Amended and Restated Deposit Agreement, any ADR or the
form of ADR attached to the Second Amended and Restated Deposit Agreement to
Holders and Beneficial Owners of Receipts, ADRs or American Depositary Receipts
shall include, unless a reasonable interpretation of the context otherwise
mandates, Holders and Beneficial Owners of ADSs.
SECTION 2.03. Change in Par Value. Section 1.34 of the Second Amended and
Restated Deposit Agreement is hereby amended as of the Effective Date by
deleting the entire section in its entirety and inserting the following in its
stead:
"Section 1.34 "Shares" shall mean the Company's non-voting preferred
shares (acoes preferenciais), with a par value of R$5.00, validly issued
and outstanding and fully paid and may, if the Depositary so agrees after
consultation of the Company, include evidence of the right to receive
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Shares; provided that in no event shall Shares include evidence of the
right to receive Shares with respect to which the full purchase price has
not been paid or Shares as to which preemptive rights have theretofore not
been validly waived or exercised; provided further, however, that, if
there shall occur any change in par or nominal value, split-up,
consolidation, reclassification, conversion or any other event described
in Section 4.11, in respect of the Shares of the Company, the term
"Shares" shall thereafter, to the maximum extent permitted by law,
represent the successor securities resulting from such change in par or
nominal value, split-up, consolidation, exchange, conversion,
reclassification or event."
All references made in the Second Amended and Restated Deposit Agreement to the
par value of the Company's non-voting preferred shares shall, as of the
Effective Date, refer to the par value of R$5.00 per non-voting preferred share,
of the Company.
SECTION 2.04. Direct Registration System. In order to make the ADSs
eligible for the DRS, the Second Amended and Restated Deposit Agreement is
hereby amended as of the Effective Date by:
(a) deleting the Section 1.2 in its entirety and inserting the following
in its stead:
"Section 1.2 "American Depositary Share(s)" and "ADS(s)" shall mean
the rights and interests in the Deposited Securities (as hereinafter
defined) granted to the Holders and Beneficial Owners pursuant to the
terms and conditions of this Deposit Agreement and, if issued as
Certificated ADS(s) (as hereinafter defined), the American Depositary
Receipt(s) issued hereunder to evidence such ADSs. ADS(s) may be issued
under the terms of this Deposit Agreement in the form of (a) Certificated
ADS(s), in which case the ADS(s) are to be evidenced by ADR(s), or (b)
Uncertificated ADS(s) (as hereinafter defined), in which case the ADS(s)
are not to be evidenced by ADR(s) but are reflected on the direct
registration system maintained by the Depositary for such purposes under
the terms of Section 2.12. Unless otherwise specified in this Deposit
Agreement or in any ADR, or unless the context otherwise requires, any
reference to ADS(s) shall include Certificated ADS(s) and Uncertificated
ADS(s), individually or collectively, as the context may require. Each ADS
shall represent one (1) Share, until there shall occur a distribution upon
Deposited Securities referred to in Section 4.2 or a change in Deposited
Securities referred to in Section 4.11 with respect to which additional
ADSs are not issued, and thereafter each ADS shall represent the Shares or
Deposited Securities determined in accordance with the terms of such
Sections."
(b) adding the following new Section 1.36:
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"Section 1.36 "Certificated ADS(s)" shall have the meaning set forth
in Section 2.12."
(c) adding the following to the end of Section 1.24 thereof:
"Any reference to Holders of ADR(s) or ADS(s) in this Deposit
Agreement shall, in the context of the Uncertificated ADSs, refer to the
person(s) in whose name the Uncertificated ADSs are registered on the
books of the Depositary maintained for such purpose."
(d) deleting Section 1.29 in its entirety and inserting the following in
its stead:
"Section 1.29 "Receipt(s)"; "American Depositary Receipt(s)" and
"ADR(s)" shall mean any series of the certificate(s) issued by the
Depositary to evidence the American Depositary Shares issued under the
terms of this Deposit Agreement in the form of Certificated ADS(s), as
such Receipts may be amended from time to time in accordance with the
provisions of this Deposit Agreement. A Receipt may evidence any number of
ADSs and may, in the case of ADSs held through a central depository such
as DTC, be in the form of a "Balance Certificate.""
(e) adding the following as a new Section 1.37:
"Section 1.37 "Uncertificated ADS(s)" shall have the meaning set
forth in Section 2.12."
(f) deleting the first sentence of Section 2.2(a) thereof in its entirety
and inserting the following in its stead:
"Certificated ADSs shall be evidenced by definitive Receipts which
shall be engraved, printed, lithographed or produced in such other manner
as may be agreed upon by the Company and the Depositary."
(g) deleting the first sentence of Section 2.2(c) thereof in its entirety
and inserting the following in its stead:
"Subject to the limitations contained herein and in the Receipt,
title to a Receipt (and to each Certificated ADS evidenced thereby) shall
be transferable upon the same terms as a certificated security under the
laws of the State of New York, provided that, in the case of Certificated
ADSs, such Receipt has been properly endorsed or is accompanied by
properly executed instruments of transfer."
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(h) deleting the second sentence of Section 2.2(d) thereof in its entirety
and inserting the following in its stead:
"Unless issued by the Depositary as Uncertificated ADSs, a single
ADR in the form of a "Balance Certificate" will evidence the ADSs held
through DTC and will be registered in the name of the nominee for DTC
(currently "Cede & Co.") and will provide that it represents the aggregate
amount of ADSs from time to time indicated in the records of the
Depositary as being issued hereunder and that the aggregate amount of ADSs
represented thereby may from time to time be increased or decreased by
making adjustments on such records of the Depositary and of DTC or its
nominee as hereinafter provided."
(i) Adding the following sentence at the end of Section 2.11:
"For the avoidance of doubt, Partial Entitlement ADSs shall be
considered of a separate type and class from Full Entitlement ADSs."
(j) adding the following new Section 2.12:
"Section 2.12 Certificated/Uncertificated ADSs. Notwithstanding any
other provision of this Deposit Agreement, the Depositary may, at any time
and from time to time, issue ADSs that are not evidenced by ADRs (such
ADSs, the "Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the
"Certificated ADS(s)"). When issuing and maintaining Uncertificated ADS(s)
under this Deposit Agreement, the Depositary shall at all times be subject
to (a) the standards applicable to registrars and transfer agents
maintaining direct registration systems for equity securities in New York
and issuing uncertificated securities under New York law, and (b) the
terms of New York law applicable to uncertificated equity securities.
Uncertificated ADSs shall not be represented by any instruments but shall
be evidenced by registration in the books of the Depositary maintained for
such purpose. Holders of Uncertificated ADSs, that are not subject to any
registered pledges, liens, restrictions or adverse claims of which the
Depositary has written notice at such time, shall at all times have the
right to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the
same type and class, subject in each case to applicable laws and any rules
and regulations the Depositary may have established in respect of the
Uncertificated ADSs. Holders of Certificated ADSs shall, if the Depositary
maintains a direct registration system for the ADSs, have the right to
exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due
surrender of the Certificated ADS(s) to the Depositary for such purpose
and (ii) the presentation of a written request to that effect to the
Depositary, subject in each case to (w) all liens and restrictions noted
on the ADR evidencing the Certificated ADS(s) and all adverse claims of
which the Depositary then has written notice, (x) the terms of this
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Deposit Agreement and the rules and regulations that the Depositary may
establish for such purposes hereunder, (y) applicable law, and (z) payment
of the Depositary fees and expenses applicable to such exchange of
Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall
in all material respects be identical to Certificated ADS(s) of the same
type and class, except that (1) no ADR(s) shall be, or shall need to be,
issued to evidence Uncertificated ADS(s), (2) Uncertificated ADS(s) shall,
subject to the terms of this Deposit Agreement, be transferable upon the
same terms and conditions as uncertificated securities under New York law,
(3) the ownership of Uncertificated ADS(s) shall be recorded on the books
of the Depositary maintained for such purpose and evidence of such
ownership shall be reflected in periodic statements provided by the
Depositary to the Holder(s) in accordance with applicable New York law,
(4) the Depositary may from time to time, upon notice to the Holders of
Uncertificated ADSs affected thereby, establish rules and regulations, and
amend or supplement existing rules and regulations, as may be deemed
reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that such rules and regulations do not conflict with the
terms of this Deposit Agreement and applicable law, (5) the Uncertificated
ADS(s) shall not be entitled to any benefits under this Deposit Agreement
or be valid or enforceable for any purpose against the Depositary or the
Company unless such Uncertificated ADS(s) is/are registered on the books
of the Depositary maintained for such purpose, (6) the Depositary may, in
connection with any deposit of Shares resulting in the issuance of
Uncertificated ADSs and with any transfer, pledge, release and
cancellation of Uncertificated ADSs, require the prior receipt of such
documentation as the Depositary may deem reasonably appropriate, and (7)
upon termination of this Deposit Agreement, the Depositary shall not
require Holders of Uncertificated ADSs to affirmatively instruct the
Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the
terms of Section 6.2 of this Deposit Agreement. When issuing ADSs under
the terms of this Deposit Agreement, including, without limitation,
issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4 and 4.5, the Depositary
may in its discretion determine to issue Uncertificated ADSs rather than
Certificated ADSs, unless otherwise specifically instructed by the
applicable Holder to issue Certificated ADSs. All provisions and
conditions of this Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this
Section 2.12. The Depositary is authorized and directed to take any and
all actions and establish any and all procedures deemed reasonably
necessary to give effect to the terms of this Section 2.12. Any references
in this Deposit Agreement or any ADR(s) to the terms "American Depositary
Share(s)" or "ADS(s)" shall, unless the context otherwise requires,
include Certificated ADS(s) and Uncertificated ADS(s). Except as set forth
in this Section 2.12 and except as required by applicable law, the
Uncertificated ADSs shall be treated as ADSs issued and outstanding under
the terms of this Deposit Agreement. In the event that, in determining the
rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (I) the terms of this
Deposit Agreement (other than this Section 2.12) and (II) the terms of
this Section 2.12, the terms and conditions set forth in this Section 2.12
shall be controlling and shall govern the rights and obligations of the
parties to this Deposit Agreement pertaining to the Uncertificated ADSs."
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ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. ADR Amendment. The form of ADR attached as Exhibit A to the
Second Amended and Restated Deposit Agreement and each of the ADRs issued and
outstanding under the terms of the Second Amended and Restated Deposit Agreement
is hereby amended as of the Effective Date by:
(a) deleting the preamble thereof in its entirety and inserting the
following in its stead:
"Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that ________________ is the owner of
_______________ American Depositary Shares (hereinafter "ADSs"), representing
deposited non-voting preferred shares, each with a par value of R$5.00 including
evidence of rights to receive such non-voting preferred shares (the "Shares") of
COMPANHIA ENERGETICA DE MINAS GERAIS - CEMIG, a company organized and existing
under the laws of the Federative Republic of Brazil (the "Company"). As of the
date of the Deposit Agreement (as hereinafter defined), each ADS represents one
(1) Share deposited under the Deposit Agreement with the Custodian, which at the
date of the execution of the Deposit Agreement is Citibank distribuidora de
Titulos e Valores Mobiliarios s.A. (the "Cusotdian"). The ADS(s) to Shares(s)
ratio is subject to amendment as provided in Article IV of the Deposit
Agreement. The Depositary's Corporate Agency Office is located at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, X.X.X. The Depositary's principal executive
office is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. "
(b) deleting the first sentence of paragraph (1) thereof in its entirety
and inserting the following in its stead:
"This American Depositary Receipt is one of an issue of American
Depositary Receipts ("Receipts" or "ADRs"), all issued and to be issued upon the
terms and conditions set forth in the Second Amended and Restated Deposit
Agreement, dated as of August 10, 2001, by and among the Company, the Depositary
and all Holders and Beneficial Owners from time to time of ADSs evidenced by
Receipts issued thereunder, as amended by Amendment No. 1 thereto (as so amended
and as further amended and supplemented from time to time, the "Deposit
Agreement"), with each Holder and Beneficial Owner from time to time of ADSs
evidenced by ADRs, by accepting an ADS, becoming bound by all the terms and
provisions thereof."
(c) deleting the first sentence of paragraph (11) thereof in its entirety
and inserting the following in its stead:
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"It is a condition of this Receipt, and every successive Holder of
this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt (and to each Certificated ADS evidenced hereby)
shall be transferable upon the same terms as a certificated security under
the laws of the State of New York, provided that, in the case of
Certificated ADSs, the Receipt has been properly endorsed or is
accompanied by properly executed instruments of transfer."
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 and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and the
Second Amended and Restated Deposit Agreement and all other documentation
executed and delivered by the Company in connection therewith, will be and have
been, respectively, duly and validly authorized, executed and delivered by the
Company, and 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 Second Amended and Restated
Deposit Agreement as amended hereby, and any other document furnished hereunder
or thereunder in the Federative Republic of Brazil, neither of such agreements
need to be filed or recorded with any court or other authority in the Federative
Republic of Brazil (except for the Comissao de Valores Mobiliarios, the
Brazilian Securities Exchange Commission), nor does any stamp or similar tax
need be paid in Federative Republic of Brazil on or in respect of such
agreements; and
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(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued after the Effective
Date, once such new ADRs are available, whether upon the deposit of Shares or
other Deposited Securities or upon the transfer, combination or split up of
existing ADRs, shall be substantially in the form of the specimen ADR attached
as Exhibit A hereto. However, 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 Second
Amended and Restated Deposit Agreement. The Depositary is authorized and
directed to take any and all actions deemed necessary to effect the foregoing.
SECTION 5.02. Indemnification. The Company agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.03. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Second Amended and Restated Deposit Agreement as
originally executed shall remain in full force and effect.
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SECTION 5.04. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in that state.
SECTION 5.05. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, and all of such
counterparts together shall be deemed an original, and all such counterparts
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
COMPANHIA ENERGETICA DE MINAS GERAIS - CEMIG
By:
----------------------------------------
Name:
Title:
CITIBANK, N.A., AS DEPOSITARY
By:
----------------------------------------
Name:
Title:
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EXHIBIT A
FORM OF RECEIPT
CUSIP Number:
American Depositary
Shares (each American
Depositary Share
representing one (1)
Fully Paid
Preferred Share,
each with a par value of R$5.00
FORM OF FACE OF RECEIPT
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED PREFERRED SHARES
of
COMPANHIA ENERGETICA DE MINAS GERAIS - CEMIG
(Organized and existing under the laws of the Federative Republic of Brazil)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as, depositary (herein called
the "Depositary"), hereby certifies that ___________________________ is the
owner of __________________________ American Depositary Shares (hereinafter
"ADS"), representing deposited non-voting preferred shares, each with a par
value of R$5.00, including evidence of rights to receive such non-voting
preferred shares (the "Shares") of COMPANHIA ENERGETICA DE MINAS GERAIS - CEMIG,
a company organized and existing under the laws of the Federative Republic of
Brazil (the "Company"). As of the date of the Deposit Agreement (as hereinafter
A-1
defined), each ADS represents one (1) Share deposited under the Deposit
Agreement with the Custodian, which at the date of execution of the Deposit
Agreement is Citibank Distribuidora de Titulos e Valores Mobiliarios S.A. (the
"Custodian"). The ADS(s) to Share(s) ratio is subject to amendment as provided
in Article IV of the Deposit Agreement. The Depositary's Corporate Agency Office
is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. The
Depositary's principal executive office is located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts" or "ADRs"), all issued and to
be issued upon the terms and conditions set forth in the Second Amended and
Restated Deposit Agreement, dated as of August 10, 2001, by and among the
Company, the Depositary and all Holders and Beneficial Owners from time to time
of ADSs evidenced by Receipts issued thereunder, as amended by Amendment No. 1
thereto (as so amended and as further amended and supplemented from time to
time, the "Deposit Agreement"), with each Holder and Beneficial Owner from time
to time of ADSs evidenced by ADRs, by accepting an ADS, becoming bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights
and obligations of Holders and Beneficial Owners of 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, other securities,
property and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary and with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
A-2
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Estatuto Social of the
Company (as in effect on the date of the signing of the Deposit Agreement) and
are qualified by and subject to the detailed provisions of the Deposit Agreement
and the Estatuto Social, to which reference is hereby made. All capitalized
terms used herein which are not otherwise defined herein shall have the meanings
ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. The
Holder of this Receipt (and of the ADSs evidenced hereby) shall be entitled to
Delivery (at the Custodian's designated office) of the Deposited Securities
without unreasonable delay at the time represented by the ADS(s) evidenced
hereby upon satisfaction of each of the following conditions: (i) the Holder (or
a duly authorized attorney of the Holder) has duly Delivered to the Depositary
at its Principal Office the ADSs evidenced hereby (and, if applicable, this
Receipt) for the purpose of withdrawal of the Deposited Securities represented
A-3
thereby; (ii) if so required by the Depositary, this Receipt has been properly
endorsed in blank or s accompanied by proper instruments of transfer in blank
(including signature guarantees in accordance with standard securities industry
practice); (iii) if so required by the Depositary, the Holder of the ADSs has
executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order; and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however,
in each case, to the terms and conditions of this Receipt, the Deposit
Agreement, the Company's Estatuto Social, any applicable laws and the rules of
Companhia Brasileira de Liquidacao e Custodia and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, this Receipt, the Company's Estatuto
Social, any applicable laws and the rules of Companhia Brasileira de Liquidacao
e Custodia and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
A-4
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADS(s) so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person surrendering the ADSs. Notwithstanding anything else
contained in this Receipt or the Deposit Agreement, the Depositary may make
delivery at the Principal Office of the Depositary of (i) any cash dividends or
cash distributions, or (ii) any proceeds from the sale of any distributions of
shares or rights, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so surrendering ADSs
represented by this Receipt, and for the account of such Holder, the Depositary
shall direct the Custodian to forward (to the extent permitted by law) any cash
or other property (other than securities) held by the Custodian in respect of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable, telex or
facsimile transmission.
(3) Transfer, Combination and Split-Up of Receipts. Subject to the terms
and conditions of the Deposit Agreement, the Registrar shall register the
transfer of this Receipt (and of the ADSs represented hereby) on the books
A-5
maintained for such purpose and the Depositary shall cancel this Receipt and
execute new Receipts evidencing the same aggregate number of ADSs as those
evidenced by this Receipt when canceled, shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
the order of the person entitled thereto, if each of the following conditions
has been satisfied: (i) this Receipt has been duly Delivered by the Holder (or
by a duly authorized attorney of the Holder) to the Depositary at its Principal
Office for the purpose of effecting a transfer thereof; (ii) this Receipt has
been properly endorsed or is accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice); (iii) this Receipt has been duly stamped (if required by the laws of
the State of New York or of the United States); and (iv) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes
and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this Receipt, the Deposit Agreement and applicable law,
in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this Receipt
(and of the ADSs represented hereby) on the books maintained for such purpose
and the Depositary shall cancel this Receipt and execute new Receipts for the
number of ADSs requested, but in the aggregate not exceeding the number of ADSs
evidenced by this Receipt (when canceled), shall cause the Registrar to
countersign such new Receipts, and shall Deliver such new Receipts to or upon
the order of the Holder thereof, if each of the following conditions has been
satisfied: (i) this Receipt has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a split-up or combination hereof; and (ii) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
A-6
applicable taxes and government charges (as are set forth in Section 5.9 of, and
Exhibit B to, the Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this Receipt, of the Deposit Agreement and
of applicable law, in each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance or transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of a 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 and charges of
the Depositary as provided in the Deposit Agreement and in this Receipt, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matters contemplated in the Deposit Agreement and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this Receipt and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of 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 Company, the Depositary, a Registrar or the Share Registrar are closed or
A-7
if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this Receipt, or under any provision of,
or governing, the Deposited Securities, or because of any meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (24) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, Holders are entitled to surrender outstanding ADSs
to withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Section I.A.(1) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time). Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares or other
Deposited Securities required to be registered under the provisions of the U.S.
Securities Act of 1933, as amended, unless a registration statement is in effect
as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to Brazilian law, the rules and requirements of the Sao Paulo
Stock Exchange and any other stock exchange on which Shares or ADSs are, or will
be, registered, traded or listed, or the Estatuto Social of the Company, which
A-8
are made to provide information, inter alia, as to the capacity in which such
Holder or Beneficial Owner owns ADSs and the Shares, as the case may be, and
regarding the identity of any other person(s) interested in such ADSs and the
nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this Receipt
or of the Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
by applicable law or the Estatuto Social of the Company. The Company may also
restrict, in such manner as it deems appropriate, transfers of ADSs where such
transfer may result in the total number of Shares represented by the ADSs owned
by a single Holder or Beneficial Owner to exceed any such limits. The Company
may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or a mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Estatuto Social of the Company.
(7) Liability of Holder for Taxes and Other Charges. If any tax or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities or ADSs, such tax or other governmental charge shall be
payable by the Holders and Beneficial Owners to the Depositary. The Company, the
Custodian and/or the Depositary may withhold or deduct from any distributions
made in respect of Deposited Securities and may sell for the account of a Holder
A-9
and/or Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, with the Holder and the Beneficial Owner
hereof remaining fully liable for any deficiency. The Custodian may refuse the
deposit of Shares, and the Depositary may refuse to issue ADSs, to deliver ADRs,
register the transfer, split-up or combination of ADRs and (subject to Article
(24) hereof) the withdrawal of Deposited Securities, until payment in full of
such tax, charge, penalty or interest is received. Every Holder and Beneficial
Owner agrees to indemnify the Depositary, the Company, the Custodian, and each
of their respective agents, officers, directors, employees and Affiliates for,
and hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares (and the certificates therefor) are duly
authorized, validly issued, fully paid, non-assessable and legally obtained by
such person, (ii) all preemptive (and similar) rights, if any, with respect to
such Shares, have been validly waived or exercised, (iii) the person making such
deposit is duly authorized so to do, (iv) the Shares presented for deposit are
free and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim and are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of ADSs in respect thereof and the transfer of such ADSs. If any
such representations or warranties are false in any way, the Company and
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.
A-10
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the Depositary or the Custodian may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (24) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the execution or delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or other distribution of
rights or of the proceeds thereof or, to the extent not limited by Article (24)
hereof, the delivery of any Deposited Securities until such proof or other
information is filed, or such certificates are executed, or such representations
and warranties are made, or such information and documentation are provided, in
each case to the Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
A-11
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S.$5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraphs (iii)
and (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S.$5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S.$2.00 per
100 ADSs (or portion thereof) held for the distribution of
cash proceeds (i.e., upon the sale of rights and other
entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of U.S.$5.00
per 100 ADSs (or portion thereof) issued upon the exercise of
rights; and
(v) No Fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or other
free distributions of stock) so long as the charging of such
fee is prohibited by the exchange upon which the ADSs are
listed. If charging of such fees is not prohibited, the fees
specified in (i) above shall be payable in respect of a
distribution of ADSs pursuant to stock dividends (or other
free distributions of stock) and the fees specified in (iii)
above shall be payable in respect of distributions of cash.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following-charges:
A-12
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
A-13
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each Certificated ADS evidenced
hereby) shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that, in the case of
Certificated ADSs, the Receipt has been properly endorsed or is accompanied by
properly executed instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
Receipt (that is, the person in whose name this Receipt is registered on the
books of the Depositary as the absolute owner hereof for all purposes. Neither
the Depositary nor the Company shall have any obligation nor be subject to any
liability hereunder or under the Deposit Agreement to any holder of this Receipt
or any Beneficial Owner unless such holder is the Holder of this Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of Receipt. The Holder(s) of this Receipt (and the ADSs
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company, unless this Receipt has been (i) dated, (ii) signed by the manual
or facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
A-14
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Xxxxxxxxx Xxxxx, 000 X Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000. The Depositary shall make available for inspection by
Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Company subject, in all cases, to Article (24)
hereof.
A-15
Dated:
CITIBANK, N.A. CITIBANK, NA., as Depositary
Transfer Agent and Registrar
By: By:
--------------------------------- ---------------------------------
Authorized Signatory Vice President
The address of the Principal Office of the Depositary is 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-16
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis, into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (upon the terms of the
Deposit Agreement), (ii) if applicable, establish the ADS Record Date upon the
terms described in Section 4.9 of the Deposit Agreement and (iii) will
distribute promptly the amount thus received (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADS held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company to the relevant governmental authority.
A-17
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary, and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net (a) of the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell
the number of Shares or ADSs, as the case may be, represented by the aggregate
of such fractions and distribute the net proceeds upon the terms set forth in
the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
A-18
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of (a) taxes
and fees and (b) charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS record date according to Article (16) hereof and establish procedures to
enable the Holder hereof to elect to receive the proposed distribution in cash
or in additional ADSs. If a Holder elects to receive the distribution in cash,
the dividend shall be distributed as in the case of a distribution in cash. If
the Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Shares. If
such elective distribution is not lawful or not reasonably practicable, the
Depositary shall, to the extent permitted by law, distribute to Holders, on the
basis of the same determination as is made in Brazil respect of the Shares for
which no election is made, either (x) cash or (y) additional ADSs representing
such additional Shares, in each case, upon the terms described in the Deposit
Agreement. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holder hereof a method to receive the
A-19
elective distribution in Shares (rather than ADSs). It is understood and agreed
that the Holder hereof may not be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary, upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise the rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise
of such rights. Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not timely
request the Depositary to make the rights available to Holders or if the Company
requests that the rights not be made available to Holders, (ii) the Depositary
fails to receive the documentation required by the Deposit Agreement or
determines it is not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
A-20
about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes) upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to make any rights available to Holders
or to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such rights available to Holders in general or any Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale or exercise, or (iii) the content of any materials forwarded to
the ADR Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
A-21
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges. Because Brazilian law presently does not contemplate the
issuance of rights in negotiable form and the possibility of such issuance is
unlikely, a liquid market for rights may not exist, and this may adversely
affect (1) the ability of the Depositary to dispose of such rights or (2) the
amount the Depositary would realize upon disposal of rights.
It is understood and agreed that Holders generally, or any Holder in
particular, may not be given the opportunity to receive or exercise rights on
the same terms and conditions as the holders of Shares or to exercise such
rights. Nothing herein or in the Deposit Agreement shall obligate the Company to
file any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
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documentation contemplated in the Deposit Agreement and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution ((i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld). The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale) as the
Depositary may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property for the account of the Holders in any way it deems reasonably
practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) provide to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any other particulars set forth
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in the Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof upon the terms of the Deposit Agreement. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
the Deposit Agreement and the applicable fees and charges of, and expenses
incurred by, the Depositary, and taxes) multiplied by the number of Units or
Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, or any other matter, the Depositary,
after consultation with the Company, shall fix a record date ("ADS Record Date")
for the determination of the Holders of Receipts who shall be entitled to
receive such distribution, to give instructions for the exercise of voting
rights at any such meeting, or to give or withhold such consent, or to receive
A-24
such notice or solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of Shares represented by
each ADS. Subject to applicable law and the terms and conditions of this Receipt
and the Deposit Agreement, only the Holders of record at the close of business
in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such instructions, to receive such notice or
solicitation, or otherwise take action.
(17) Voting of Deposited Securities. The Shares are non-voting, except in
certain limited circumstances. The following provisions of this Article (17)
shall apply solely in those circumstances in which the Shares are entitled to
vote. As soon as practicable after receipt of notice of any meeting at which the
holders of Deposited Securities are entitled to vote, or of solicitation of
consents or proxies from holders of Deposited Securities, the Depositary shall
fix the ADS Record Date in respect of such meeting or solicitation of such
consent or proxy. The Depositary shall (if requested in writing in a timely
manner by the Company, at the Company's expense and provided no U.S. legal
prohibitions exist) distribute to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxies; (b) a statement that
the Holders as of the ADS Record Date will be entitled, subject to any
applicable law, the Company's Estatuto Social and the provisions of or governing
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Deposited Securities represented by
such Holder's ADSs; and (c) a brief statement as to the manner in which such
voting instructions may be given, including a statement setting forth the action
to be taken by the Depositary if voting instructions are received that fail to
specify the manner in which such Holder's ADSs are to be voted. Upon the timely
receipt of voting instructions from a Holder of ADSs as of the ADS Record Date
in the manner specified by the Depositary, the Depositary shall endeavor,
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insofar as practicable and permitted under applicable law and the provisions of
the Estatuto Social of the Company and the provisions of the Deposited
Securities, to vote, or cause the Custodian to vote, the Deposited Securities
represented by ADSs held by such Holder in accordance with such instructions.
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise, the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions timely received from Holders or as otherwise contemplated
herein. If the Depositary timely receives voting instructions from a Holder that
fail to specify the manner in which the Depositary is to vote the Deposited
Securities represented by such Holder's ADSs, the Depositary will deem such
Holder (unless otherwise specified in the notice distributed to Holders) to have
instructed the Depositary to vote in favor of the items set forth in such
instructions. Deposited Securities represented by ADSs for which no timely
voting instructions are received by the Depositary from the Holder shall not be
voted. Notwithstanding anything else contained herein, the Depositary shall, if
so requested in writing by the Company, represent all Deposited Securities
(whether or not voting instructions have been received in respect of such
Deposited Securities from Holders as of the ADS Record Date) for the sole
purpose of establishing quorum at a meeting of shareholders. Notwithstanding
anything else contained in the Deposit Agreement or this Receipt, the Depositary
shall not have any obligation to take any action with respect to any meeting, or
solicitation or consents or proxies, of holders of Shares or other Deposited
Securities if the taking of such action would violate U.S. laws. The Company
agrees to take any and all actions reasonably necessary to enable Holders and
Beneficial Owners to exercise the voting rights accruing to the Deposited
A-26
Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
It is understood and agreed that Holders generally or any Holder in particular
may not receive the notice described above with sufficient time to enable the
Holder to return voting instructions to the Depositary in a timely manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it otherwise
is a party, any securities which shall be received by the Depositary or the
Custodian in exchange for, or in conversion of or replacement of or otherwise in
respect of, such Deposited Securities shall, to the extent permitted by law, be
treated as new Deposited Securities under the Deposit Agreement, and the
Receipts shall, subject to the provisions of the Deposit Agreement and
applicable law, evidence ADSs representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt contained
in this Receipt, specifically describing such new Deposited Securities and/or
corporate change. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company requests,
A-27
subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) for the account of the Holders otherwise
entitled to such securities and distribute the net proceeds so allocated to the
extent practicable as in the case of a distribution received in cash pursuant to
the Deposit Agreement. Immediately upon the occurrence of any such change,
conversion or exchange covered by this Article (18) in respect of the Deposited
Securities, the Depositary shall give notice thereof in writing to all Holders
at the Company's expense; provided that the Company shall provide the Depositary
with the content of such notice in writing. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such securities available to Holders in general or any Holder in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or shall incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, Brazil or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or by reason of any
provision, present or future of the Estatuto Social of the Company or any
provision of or governing any Deposited Securities, or by reason of any act of
God or war or other circumstances beyond its control (including, without
A-28
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement or in the Estatuto Social
of the Company or provisions of or governing Deposited Securities, (iii) for any
action or inaction in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for any inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit Agreement. The
Depositary, its controlling persons, its agents, the Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or parties. No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement or this Receipt.
(20) Standard of Care. The Company and its agents assume no obligation and
shall not be subject to any liability under the Deposit Agreement or this
Receipt to any Holder(s) or Beneficial Owner(s) or other persons, except that
the Company and its agents agree to perform their obligations specifically set
forth in the Deposit Agreement and this Receipt without negligence or bad faith.
The Depositary and its agents assume no obligation and shall not be subject to
any liability under the Deposit Agreement or the Receipts to any Holder(s) or
Beneficial Owner(s) or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in the Deposit
A-29
Agreement without negligence or bad faith. The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of the Deposit
Agreement or for the failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary: Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company, or (ii) 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 written
notice of such removal which notice shall be effective upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
A-30
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon payment of all
sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in the Deposit
Agreement), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly provide notice
of its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
Article 22, the Deposit Agreement and applicable law, this Receipt and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 60 days after notice of such amendment or
A-31
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
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 materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt 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 with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice,
of such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination. If 90 days
A-32
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by providing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holder's Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon 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 such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders 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 as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, 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, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
A-33
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six months from the date of termination of the
Deposit Agreement, 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, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
whose Receipts have not theretofore been surrendered. After making such sale,
the Depositary shall be discharged from all obligations under the Deposit
Agreement with respect to the Receipts and the Shares, the Deposited Securities
and the ADSs, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(24) Compliance with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to the
contrary, the withdrawal or delivery of Deposited Securities will not be
suspended by the Company or the Depositary except as would be permitted by
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 of 1933.
The Depositary and the Company have confirmed to each other that, for as
long as the Deposit Agreement is in effect, they shall comply with any
requirements for registration of the amount of Deposited Securities with the
Central Bank of Brazil and furnish the Brazilian securities regulatory authority
A-34
(the Comissao de Valores Mobiliarios) and the Central Bank of Brazil such
information and documents related to the Deposited Securities, the Receipts and
the Depositary's obligations as may be requested by such authorities from time
to time pursuant to paragraph 3, article 3 of Regulation Annex V to Resolution
1.289.87 (as published in Resolution 1.927/92) of the Brazilian National
Monetary Council. In the event that the Depositary or the Custodian shall be
advised in writing (the "Legal Warning") by Brazilian counsel reasonably
satisfactory to the Depositary that the Depositary or the Custodian reasonably
could be subject to criminal or civil liabilities as a result of the Company
having failed to provide to the CVM or the Central Bank of Brazil such
information or documents available through the Company, the Depositary will
immediately send a copy of the Legal Warning to the Company, shall have the
right to immediately resign as Depositary by written notice to the Company and
will not be subject to any liability hereunder for such resignation or such
determination, and the Company agrees to indemnify the Depositary, the Custodian
and any of their respective officers, directors, employees, and agents against,
and hold each of them harmless from any loss or liability of any kind incurred
that arises under Section 7.9 of the Deposit Agreement. Upon effectiveness of
such resignation, the Depositary shall otherwise be discharged from all of its
obligations under the Deposit Agreement. Resignation pursuant to this Article
(24) shall be effected in accordance with Article (21); provided that, if the
Company fails to appoint a new depositary within ninety (90) days of such
resignation, the Deposit Agreement shall be terminated in accordance with
Article (23) hereof and the Company or its designated agents will assume the
obligations stated as the obligations of the Depositary in such Article.
(25) Certain Rights of the Depositary: Limitations. Subject to the further
terms and provisions of this Article (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
A-35
of the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as Depositary, the Depositary shall not
lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Shares under (i) above and receive Shares in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) accompanied
by or subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Shares are to be delivered (1) represents that at
the time of the Pre-Release Transaction the Applicant or its customer owns the
Shares or ADSs that are to be delivered by the Applicant under such Pre-Release
Transaction, (2) agrees to indicate the Depositary as owner of such Shares or
ADSs in its records and to hold such Shares or ADSs in trust for the Depositary
until such Shares or ADSs are delivered to the Depositary or the Custodian, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (4) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days' notice and (d) subject to such further indemnities
A-36
and credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary may also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with any one person on a case by case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to (b) above, but
not earnings thereon, shall be held for the benefit of the Holders (other than
the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ____________________________ whose taxpayer identification
number is ____________________________ and whose address including postal zip
code is ____________________________, the within Receipt and all rights
thereunder, hereby irrevocably constituting and appointing
____________________________ attorney-in-fact to transfer said Receipt on the
books of the Depositary with full power of substitution in the premises.
Dated: Name: ______________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an attorney, executor, administrator, trustee
or guardian, the person executing the endorsement must give his/her full title
in such capacity and proper evidence of authority to act in such capacity, if
not on file with the Depositary, must be forwarded with this Receipt.
_________________________
SIGNATURE GUARANTEED
All endorsements or assignments of Receipts must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
Legends
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The Receipts issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the Receipt: "This Receipt
evidences American Depositary Shares representing `partial entitlement'
Preferred Shares of COMPANHIA ENERGETICA DE MINAS GERAIS - CEMIG and as such do
not entitle the holders thereof to the same per-share entitlement as other
Preferred Shares (which are "full entitlement" Preferred Shares) issued and
outstanding at such time. The American Depositary Shares represented by this
Receipt shall entitle holders to distributions and entitlements identical to
other American Depositary Shares when the Preferred Shares represented by such
American Depositary Shares become "full entitlement" Preferred Shares.
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