PETRÓLEO BRASILEIRO S. A. – PETROBRAS AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Amended and Restated Deposit Agreement Dated as of January __, 2007
Exhibit
(a) (1)
PETRÓLEO BRASILEIRO S. A. – PETROBRAS
AND
JPMORGAN CHASE BANK, N.A.,
As Depositary
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Amended and Restated Deposit Agreement
Dated as of January __, 2007
TABLE OF CONTENTS
| Page | ||||||
PARTIES
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1 | |||||
RECITALS
|
1 | |||||
Section 1.
|
Certain Definitions | |||||
| (a) ADR Register | 1 | |||||
| (b) ADRs; Direct Registration ADRs | 1 | |||||
| (c) ADS | 1 | |||||
| (d) Custodian | 1 | |||||
| (e) Deliver, execute, issue et al. | 1 | |||||
| (f) Delivery Order | 1 | |||||
| (g) Deposited Securities | 1 | |||||
| (h) Direct Registration System | 1 | |||||
| (i) Holder | 1 | |||||
| (j) Securities Act of 1933 | 1 | |||||
| (k) Securities Exchange Act of 1934 | 1 | |||||
| (l) Shares | 1 | |||||
| (m) Transfer Office | 1 | |||||
| (n) Withdrawal Order | 1 | |||||
Section 2.
|
ADRs | 2 | ||||
Section 3.
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Deposit of Shares | 2 | ||||
Section 4.
|
Issue of ADRs | 2 | ||||
Section 5.
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Distributions on Deposited Securities | 3 | ||||
Section 6.
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Withdrawal of Deposited Securities | 3 | ||||
Section 7.
|
Substitution of ADRs | 4 | ||||
Section 8.
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Cancellation and Destruction of ADRs | 4 | ||||
Section 9.
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The Custodian | 4 | ||||
Section 10.
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Co-Registrars and Co-Transfer Agents | 4 | ||||
Section 11.
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Lists of Holders. | 4 | ||||
Section 12.
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Depositary’s Agents | 5 | ||||
Section 13.
|
Successor Depositary | 5 | ||||
Section 14.
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Reports | 5 | ||||
Section 15.
|
Additional Shares | 5 | ||||
Section 16.
|
Indemnification | 5 | ||||
Section 17.
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Notices | 6 | ||||
Section 18.
|
Miscellaneous | 6 | ||||
Section 19.
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Consent to Jurisdiction | 6 | ||||
Section 20.
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Amendment and Restatement of Old Deposit Agreement | 6 | ||||
TESTIMONIUM
|
7 | |||||
SIGNATURES
|
7 | |||||
i
EXHIBIT A
| Page | ||||
FORM OF FACE OF ADR |
A-1 | |||
| A-1 | ||||
Introductory Paragraph |
||||
(1) Issuance of ADRs |
A-2 | |||
(2) Withdrawal of Deposited Securities |
A-2 | |||
(3) Transfers of ADRs |
A-2 | |||
(4) Certain Limitations |
A-3 | |||
(5) Taxes |
A-4 | |||
(6) Disclosure of Interests |
A-4 | |||
(7) Charges of Depositary |
A-4 | |||
(8) Available Information |
A-5 | |||
(9) Execution |
A-6 | |||
Signature of Depositary |
A-6 | |||
Address of Depositary’s Office |
A-6 | |||
| A-7 | ||||
FORM OF REVERSE OF ADR |
||||
(10) Distributions on Deposited Securities |
A-7 | |||
(11) Record Dates |
A-8 | |||
(12) Voting of Deposited Securities |
A-8 | |||
(13) Changes Affecting Deposited Securities |
A-8 | |||
(14) Exoneration |
A-8 | |||
(15) Resignation and Removal of Depositary; the Custodian |
A-9 | |||
(16) Amendment |
A-9 | |||
(17) Termination |
A-10 | |||
(18) Appointment |
A-10 | |||
ii
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of January __, 2007 (the “Deposit Agreement”)
among PETRÓLEO BRASILEIRO S. A. – PETROBRAS and its successors (the “Company”), JPMORGAN CHASE
BANK, N.A., as depositary hereunder (the “Depositary”), and all holders from time to time of
American Depositary Receipts issued hereunder (“ADRs”) evidencing American Depositary Shares
(“ADSs”) representing deposited Shares (defined below). The Company hereby appoints the Depositary
as depositary for the Deposited Securities and hereby authorizes and directs the Depositary to act
in accordance with the terms set forth in this Deposit Agreement. All capitalized terms used herein
have the meanings ascribed to them in Section 1 or elsewhere in this Deposit Agreement.
W I T N E S S E T H
WHEREAS, the Company and Citibank, N.A. entered into a Deposit Agreement dated as of [February 1,
2001][July 14, 2000], as amended (the “Old Deposit Agreement”) to provide for the deposit of Shares
of the Company with Citibank, N.A. or with the Custodian as agent of Citibank, N.A. for the
purposes set forth in such Old Deposit Agreement, for the creation of American depositary shares
representing the Shares so deposited and for the execution and delivery of American depositary
receipts (“Old Receipts”) evidencing the American depositary shares;
WHEREAS, pursuant to the terms of Section 5.5 of the Old Deposit Agreement, the Company has removed
Citibank, N.A. as depositary and has appointed JPMorgan Chase Bank, N.A., as successor depositary
thereunder; and
WHEREAS, the Company and JPMorgan Chase Bank, N.A., in its capacity as successor depositary under
the Old Deposit Agreement, now wish to amend and restate the Old Deposit Agreement and the Old
Receipts;
NOW THEREFORE, in consideration of the premises, subject to Section 20 hereof, the parties hereto
hereby amend and restate the Old Deposit Agreement and the Old Receipts in their entirety as
follows:
1. Certain Definitions.
(a) “ADR Register” is defined in paragraph (3) of the form of ADR.
(b) “ADRs” mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct Registration ADRs. ADRs in
physical certificated form, and the terms and conditions governing the Direct Registration ADRs (as
hereinafter defined), shall be substantially in the form of Exhibit A annexed hereto (the “form
of ADR”). The term “Direct Registration ADR” means an ADR, the ownership of which is
recorded on the Direct Registration System. References to “ADRs” shall include certificated ADRs
and Direct Registration ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR shall be binding upon
the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each “ADS” evidenced by an ADR
represents the right to receive four Shares and a pro rata share in any other Deposited Securities.
(d) “Custodian”means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute Custodian appointed
pursuant to Section 9.
(e) The terms “deliver”, “execute”, “issue”, “register”,
“surrender”, “transfer” or “cancel”, when used with respect to Direct
Registration ADRs, shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System, and, when used with respect to ADRs in physical certificated form,
shall refer to the physical delivery, execution, issuance, registration, surrender, transfer or
cancellation of certificates representing the ADRs.
(f) “Delivery Order” is defined in Section 3.
(g) “Deposited Securities” as of any time means all Shares at such time deposited
under this Deposit Agreement and any and all other Shares, securities, property and cash at such
time held by the Depositary or the Custodian in respect or in lieu of such deposited Shares and
other Shares, securities, property and cash.
(h) “Direct Registration System” means the system for the uncertificated
registrationof ownership of securities established by The Depository Trust Company (“DTC”) and
utilized by the Depositary pursuant to which the Depositary may record the ownership of ADRs
without the issuance of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary to the Holders entitled thereto. For purposes hereof, the Direct
Registration System shall include access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the Depositary.
(i) “Holder” means the person or persons in whose name an ADR is registered on
the ADR Register.
(j) “Securities Act of 1933” means the United States Securities Act of 1933, as
from time to time amended.
(k) “Securities Exchange Act of 1934” means the United States Securities Exchange
Act of 1934, as from time to time amended.
(l) “Shares”mean the common shares of the Company, and shall include the rights
to receive Shares specified in paragraph (1) of the form of ADR.
(m) “Transfer Office” is defined in paragraph (3) of the form of ADR.
(n) “Withdrawal Order” is defined in Section 6.
2
2. ADRs. (a) ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices in its American
depositary receipt business, or at the request of the Company typewritten and photocopied on plain
or safety paper, and shall be substantially in the form set forth in the form of ADR, with such
changes as may be required by the Depositary or the Company to comply with their obligations
hereunder, any applicable law, regulation or usage or to indicate any special limitations or
restrictions to which any particular ADRs are subject. ADRs may be issued in denominations of any
number of ADSs. ADRs in certificated form shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized officer of the Depositary. ADRs in certificated form
bearing the facsimile signature of anyone who was at the time of execution a duly authorized
officer of the Depositary shall bind the Depositary, notwithstanding that such officer has ceased
to hold such office prior to the delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit Agreement or in the
form of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit Agreement and of the form of
ADR, regardless of whether their ADRs are Direct Registration ADRs or certificated ADRs.
3. Deposit of Shares. In connection with the deposit of Shares hereunder, the Depositary or
the Custodian may require the following in form satisfactory to it: (a) a written order directing
the Depositary to issue to, or upon the written order of, the person or persons designated in such
order a Direct Registration ADR or ADRs evidencing the number of ADSs representing such deposited
Shares (a “Delivery Order”); (b) proper endorsements or duly executed instruments of transfer in
respect of such deposited Shares; (c) instruments assigning to the Custodian or its nominee any
distribution on or in respect of such deposited Shares or indemnity therefor; and (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to paragraph (10) or (13) of
the form of ADR, the Custodian shall present such Deposited Securities for registration of transfer
into the name of the Custodian or its nominee, to the extent such registration is practicable, at
the cost and expense of the person making such deposit (or for whose benefit such deposit is made)
and shall obtain evidence satisfactory to it of such registration. Deposited Securities shall be
held by the Custodian for the account and to the order of the Depositary at such place or places
and in such manner as the Depositary shall determine. Deposited Securities may be delivered by the
Custodian to any person only under the circumstances expressly contemplated in this Deposit
Agreement. To the extent that the provisions of or governing the Shares make delivery of
certificates therefor impracticable, Shares may be deposited hereunder by such delivery thereof as
the Depositary or the Custodian may reasonably accept, including, without limitation, by causing
them to be credited to an account maintained by the Custodian for such purpose with the Company or
an accredited intermediary, such as a bank, acting as a registrar for the Shares, together with
delivery of the documents, payments and Delivery Order referred to herein to the Custodian or the
Depositary.
3
The Depositary and the Custodian shall comply with written instructions from the Company or
its Brazilian counsel to maintain registration of the amount of Deposited Securities with Banco
Central do Brasil (the “Central Bank”) and to furnish to the Central Bank and to the Comissão de
Valores Mobiliários (the “Securities Commission”), whenever required, information or documents
related to this Deposit Agreement, the ADRs and the Deposited Securities and distributions thereon,
and may rely, and shall be fully protected in relying, on such written instructions from the
Company or its Brazilian counsel in respect of such registration, information and documents.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall notify the
Depositary of such deposit and of the information contained in any related Delivery Order by
letter, first class airmail postage prepaid, or, at the request, risk and expense of the person
making the deposit, by cable, telex or facsimile transmission. After receiving such notice from the
Custodian, the Depositary, subject to this Deposit Agreement, shall properly issue at the Transfer
Office, to or upon the order of any person named in such notice, an ADR or ADRs registered as
requested and evidencing the aggregate ADSs to which such person is entitled.
5. Distributions on Deposited Securities. To the extent that the Depositary determines in
its discretion that any distribution pursuant to paragraph (10) of the form of ADR is not
practicable with respect to any Holder, the Depositary may make such distribution as it so deems
practicable, including the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or property) or the
retention thereof as Deposited Securities with respect to such Holder’s ADRs (without liability for
interest thereon or the investment thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender of an ADR for
withdrawal of the Deposited Securities represented by the ADSs evidenced thereby, the Depositary
may require proper endorsement in blank of such ADR (or duly executed instruments of transfer
thereof in blank) and the Holder’s written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and delivered to, or upon
the written order of, any person designated in such order (a “Withdrawal Order”). Directions from
the Depositary to the Custodian to deliver Deposited Securities shall be given by letter, first
class airmail postage prepaid, or, at the request, risk and expense of the Holder, by cable, telex
or facsimile transmission. Delivery of Deposited Securities may be made by the delivery of
certificates (which, if required by law shall be properly endorsed or accompanied by properly
executed instruments of transfer or, if such certificates may be registered, registered in the name
of such Holder or as ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable, including, without limitation, by transfer of record ownership
thereof to an account designated in the Withdrawal Order maintained either by the Company or an
accredited intermediary, such as a bank, acting as a registrar for the Deposited Securities.
7. Substitution of ADRs. The Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon cancellation thereof or in
lieu of and in substitution for such destroyed, lost or stolen certificated ADR, unless the
Depositary has notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed by the Depositary.
4
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy ADRs in certificated form so
cancelled in accordance with its customary practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to the directions of
the Depositary and shall be responsible solely to it. The Depositary may from time to time appoint
one or more agents to act for it as Custodian hereunder. Each Custodian so appointed (other than
JPMorgan Chase Bank, N.A.) shall give written notice to the Company and the Depositary accepting
such appointment and agreeing to be bound by the applicable terms hereof. Any Custodian may resign
from its duties hereunder by at least 30 days written notice to the Depositary. The Depositary may
discharge any Custodian at any time upon notice to the Custodian being discharged. Any Custodian
ceasing to act hereunder as Custodian shall deliver, upon the instruction of the Depositary, all
Deposited Securities held by it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint and remove (i)
co-registrars to register ADRs and transfers, combinations and split-ups of ADRs and to countersign
ADRs in accordance with the terms of any such appointment and (ii) co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of ADRs at designated transfer offices
in addition to the Transfer Office on behalf of the Depositary. Each co-registrar or co-transfer
agent (other than JPMorgan Chase Bank, N.A.) shall give notice in writing to the Company and the
Depositary accepting such appointment and agreeing to be bound by the applicable terms of this
Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect transfer records of the
Depositary and its agents and the ADR Register, take copies thereof and require the Depositary and
its agents to supply copies of such portions of such records as the Company may request. The
Depositary or its agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as of a date within
seven days of the Depositary’s receipt of such request.
12. Depositary’s Agents. The Depositary may perform its obligations under this Deposit
Agreement through any agent appointed by it, provided that the Depositary shall notify the Company
of such appointment and shall remain responsible for the performance of such obligations as if no
agent were appointed.
5
13. Successor Depositary. The Depositary may at any time resign as Depositary hereunder by
60 days prior written notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of such appointment
as hereinafter provided. The Depositary may at any time be removed by the Company by providing no
less than 60 days prior written notice of such removal to the Depositary, such removal to take
effect the later of (i) the 60th day after such notice of removal is first provided and
(ii) the appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided. Notwithstanding the foregoing, if upon the resignation or removal of the
Depositary a successor depositary is not appointed within the applicable 60 day period as specified
in paragraph (17) of the form of ADR, then the Depositary may elect to terminate this Deposit
Agreement and the ADR and the provisions of said paragraph (17) shall thereafter govern the
Depositary’s obligations hereunder. 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 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 law, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor. The predecessor depositary,
only upon payment of all sums due to 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 its rights to indemnification and fees owing, each of which shall
survive any such removal and/or resignation), (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 ADRs. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any bank or trust company into or with
which the Depositary may be merged or consolidated, or to which the Depositary shall transfer
substantially all its American depositary receipt business, shall be the successor of the
Depositary without the execution or filing of any document or any further act.
14. Reports. On or before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securities regulatory authority or stock
exchange, by publication or otherwise, the Company shall transmit to the Depositary a copy thereof
in English or with an English translation or summary. The Company has delivered to the Depositary,
the Custodian and any Transfer Office, a copy of all provisions of or governing the Shares and any
other Deposited Securities issued by the Company or any affiliate of the Company and, promptly upon
any change thereto, the Company shall deliver to the Depositary, the Custodian and any Transfer
Office, a copy (in English or with an English translation) of such provisions as so changed. The
Depositary and its agents may rely upon the Company’s delivery thereof for all purposes of this
Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling, controlled by or
under common control with the Company shall issue additional Shares, rights to subscribe for
Shares, securities convertible into or exchangeable for Shares or rights to subscribe for any such
securities or shall deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will use reasonable
efforts to comply with written instructions of the Company not to accept for deposit hereunder any
Shares identified in such instructions at such times and under such circumstances as may reasonably
be specified in such instructions in order to facilitate the Company’s compliance with securities
laws in the United States.
6
16. Indemnification. The Company shall indemnify, defend and save harmless each of the
Depositary and its agents against any loss, liability or expense (including reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted, in connection with the
provisions of this Deposit Agreement and of the ADRs, as the same may be amended, modified or
supplemented from time to time in accordance herewith (i) by either the Depositary or its agents or
their respective directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly arising out of the negligence
or bad faith of the Depositary, or (ii) by the Company or any of its directors, employees, agents
or affiliates.
The indemnities set forth in the preceding paragraph shall also apply to any liability or expense
which may arise out of any misstatement or alleged misstatement or omission or alleged omission in
any registration statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale of ADSs or the
Deposited Securities, except to the extent any such liability or expense arises out of (i)
information relating to the Depositary or its agents (other than the Company), as applicable,
furnished in writing by the Depositary and not changed or altered by the Company expressly for use
in any of the foregoing documents or (ii) if such information is provided, the failure to state a
material fact necessary to make the information provided not misleading.
Except as provided in the next succeeding paragraph, the Depositary shall indemnify, defend and
save harmless the Company against any loss, liability or expense (including reasonable fees and
expenses of counsel) incurred by the Company in respect of this Deposit Agreement to the extent
such loss, liability or expense is due to the negligence or bad faith of the Depositary.
Notwithstanding any other provision of this Deposit Agreement or the form of ADR to the contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable to the other for
any indirect, special, punitive or consequential damages (collectively “Special Damages”) except
(i) to the extent such Special Damages arise from the gross negligence or willful misconduct of the
party from whom indemnification is sought or (ii) to the extent Special Damages arise from or out
of a claim brought by a third party (including, without limitation, Holders) against the Depositary
or its agents, except to the extent such Special Damages arise out of the gross negligence or
willful misconduct of the party seeking indemnification hereunder
The obligations set forth in this Section 16 shall survive the termination of this Deposit
Agreement and the succession or substitution of any indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first mailed, first class
postage prepaid, to the address of such Holder on the ADR Register or received by such Holder.
Notice to the Depositary or the Company shall be deemed given when first received by it at the
address or facsimile transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by written notice:
7
| (a) | JPMorgan Chase Bank, N.A. Four Xxx Xxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: ADR Administration Fax: (000) 000-0000 |
||
| (b) | Petróleo Brasileiro S.A.– PETROBRAS Xxxxxxx Xxxxxxxxx xx Xxxxx, 00 00000-000 Xxx xx Xxxxxxx- XX Xxxxxx Attention: Fax: |
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit of the Company,
the Depositary, the Holders, and their respective successors hereunder, and shall not give any
legal or equitable right, remedy or claim whatsoever to any other person. The Holders and owners of
ADRs from time to time shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable in any respect, the
remaining provisions shall in no way be affected thereby. This Deposit Agreement may be executed in
any number of counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
19. Consent to Jurisdiction. The Company irrevocably agrees that any legal suit, action or
proceeding against the Company brought by the Depositary or any Holder, arising out of or based
upon this Deposit Agreement or the transactions contemplated hereby, may be instituted in any state
or federal court in New York, New York, and irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company also
irrevocably agrees that any legal suit, action or proceeding against the Depositary brought by the
Company, arising out of or based upon this Deposit Agreement or the transactions contemplated
hereby, may only be instituted in a state or federal court in New York, New York. The Company has
appointed its New York office, currently located at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (the “Authorized Agent”) upon which process may
be served in any such action arising out of or based on this Deposit Agreement or the transactions
contemplated hereby which may be instituted in any state or federal court in New York, New York by
the Depositary or any Holder, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. The Company represents and warrants that the Authorized Agent
has agreed to act as said agent for service of process, and the Company agrees to take any and all
action, including the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Except to the extent prohibited by
applicable law, service of process upon the Authorized Agent and written notice of such service to
the Company shall be deemed, in every respect, effective service of process upon the Company. If,
for any reason, the Authorized Agent named above or its successor shall no longer serve as agent of
the Company to receive service of process in New York, the Company shall promptly appoint a
successor acceptable to the Depositary, so as to serve and will promptly advise the Depositary
thereof. In the event the Company fails to continue such designation and appointment in full force
and effect, the Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return receipt requested,
directed to the Company at its address last specified for notices hereunder, and service so made
shall be deemed completed five (5) days after the same shall have been so mailed. Notwithstanding
the foregoing, any action based on this Agreement may be instituted by the Depositary or any Holder
in any competent court in the Federative Republic of Brazil.
8
To the extent that the Company or any of its properties, assets or revenues may have or may
hereafter be entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief
in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment in aid of execution
or judgment, or from execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at
any time be commenced, with respect to its obligations, liabilities or other matter under or
arising out of or in connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such
relief and enforcement.
20. Amendment and Restatement of Old Deposit Agreement. The Deposit Agreement
amends and restates the Old Deposit Agreement in its entirety to consist exclusively of the Deposit
Agreement, and each Old Receipt is hereby deemed amended and restated to substantially conform to
the form of ADR set forth in Exhibit A annexed hereto, except that, to the extent any portion of
either such amendment and restatement would prejudice any substantial existing right of owners of
Old Receipts, such portion shall not become effective as to such owners until 30 days after such
owners shall have received notice thereof, such notice to be conclusively deemed given upon the
mailing to such owners of notice of such amendment and restatement which notice contains a
provision whereby such owners can receive a copy of the form of ADR.
9
IN WITNESS WHEREOF, PETRÓLEO BRASILEIRO S. A. – PETROBRAS and JPMORGAN CHASE BANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth and all holders of
ADRs shall become parties hereto upon acceptance by them of ADRs issued in accordance with the
terms hereof.
| PETRÓLEO BRASILEIRO S. A. – PETROBRAS |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| JPMORGAN CHASE BANK, N.A. |
||||
| By: | ||||
| Name: | ||||
| Title: | Vice President | |||
10
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
Number |
No. of ADSs: | ||
Each ADS represents |
|||
| Four Shares | |||
| CUSIP: |
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
COMMON SHARES
of
PETRÓLEO BRASILEIRO S. A. – PETROBRAS
(Incorporated under the laws of The Federative Republic of Brazil)
JPMORGAN CHASE BANK, N.A., a national banking association organized under the laws of the
United States of America , as depositary hereunder (the “Depositary”), hereby certifies that
is the registered owner (a “Holder”) of American Depositary Shares (“ADSs”),
each (subject to paragraph (13)) representing four common shares (including the rights to receive
Shares described in paragraph (1), “Shares” and, together with any other securities, cash or
property from time to time held by the Depositary in respect or in lieu of deposited Shares, the
“Deposited Securities”), of PETRÓLEO BRASILEIRO S. A. – PETROBRAS, a corporation organized under
the laws of The Federative Republic of Brazil (the “Company”), deposited under the Amended and
Restated Deposit Agreement dated as of January , 2007 (as amended from time to time, the “Deposit
Agreement”) among the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder (“ADRs”), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the State of New York.
A-1
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a) Shares in form
satisfactory to the Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or transactions; or, (c)
unless requested in writing to cease doing so at least two business days prior to the proposed
deposit, other rights to receive Shares (until such Shares are actually deposited pursuant to (a)
or (b) above, “Pre-released ADRs”) only if (i) Pre-released ADRs are fully collateralized (marked
to market daily) with cash, government securities or such other collateral as the Depositary deems
appropriate held by the Depositary for the benefit of Holders (but such collateral shall not
constitute “Deposited Securities”), (ii) each recipient of Pre-released ADRs represents and agrees
in writing with the Depositary that such recipient or its customer (a) beneficially owns such
Shares, (b) assigns all beneficial right, title and interest therein to the Depositary, (c) holds
such Shares for the account of the Depositary and (d) will deliver such Shares to the Custodian as
soon as practicable and promptly upon demand therefor and (iii) all Pre-released ADRs evidence not
more than 20% of all ADSs (excluding those evidenced by Pre-released ADRs). The Depositary may
retain for its own account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person depositing Shares, the Depositary
may accept deposits for forwarding to the Custodian and may deliver ADRs at a place other than its
office. Every person depositing Shares under the Deposit Agreement represents and warrants that
such Shares are validly issued and outstanding, fully paid, nonassessable and free of pre-emptive
rights, that the person making such deposit is duly authorized so to do and that such Shares (A)
are not “restricted securities” as such term is defined in Rule 144 under the Securities Act of
1933 unless at the time of deposit they may be freely transferred in accordance with Rule 144(k)
and may otherwise be offered and sold freely in the United States or (B) have been registered under
the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs. The Depositary will not knowingly accept for deposit under the Deposit
Agreement any Shares required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company’s compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5), upon surrender
of (i) a certificated ADR in form satisfactory to the Depositary at the Transfer Office or (ii)
proper instructions and documentation in the case of a Direct Registration ADR, the Holder hereof
is entitled to delivery at, or to the extent in dematerialized form from, the Custodian’s office of
the Deposited Securities at the time represented by the ADSs evidenced by this ADR. At the request,
risk and expense of the Holder hereof, the Depositary may deliver such Deposited Securities at such
other place as may have been requested by the Holder. Notwithstanding any other provision of the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be restricted only for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such instructions may be
amended from time to time) under the Securities Act of 1933.
A-2
(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated transfer
office (the “Transfer Office”), (a) a register (the “ADR Register”) for the registration,
registration of transfer, combination and split-up of ADRs, and, in the case of Direct Registration
ADRs, shall include the Direct Registration System, which at all reasonable times will be open for
inspection by Holders and the Company for the purpose of communicating with Holders in the interest
of the business of the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs evidenced hereby), when
properly endorsed (in the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect as in the case of
negotiable instruments under the laws of the State of New York; provided that the
Depositary, notwithstanding any notice to the contrary, may treat the person in whose name this ADR
is registered on the ADR Register as the absolute owner hereof for all purposes and neither the
Depositary nor the Company will have any obligation or be subject to any liability under the
Deposit Agreement to any holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be split into other
ADRs or combined with other ADRs into one ADR, evidencing the aggregate number of ADSs surrendered
for split-up or combination, by the Holder hereof or by duly authorized attorney upon surrender of
this ADR at the Transfer Office properly endorsed (in the case of ADRs in certificated form) or
upon delivery to the Depositary of proper instruments of transfer and duly stamped as may be
required by applicable law; provided that the Depositary may close the ADR Register at any
time or from time to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a certificated ADR with a Direct
Registration ADR, or vice versa, execute and deliver a certificated ADR or a Direct Registration
ADR, as the case may be, for any authorized number of ADSs requested, evidencing the same aggregate
number of ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as the case
may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of transfer,
split-up or combination of any ADR, the delivery of any distribution in respect thereof, or,
subject to the last sentence of paragraph (2), the withdrawal of any Deposited Securities, and from
time to time in the case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or
the Custodian may require: (a) payment with respect thereto of (i) any stock transfer or other tax
or other governmental charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers of Shares or other Deposited Securities upon any applicable register and
(iii) any applicable charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity of any signatory and genuineness of any signature and (ii)
such other information, including without limitation, information as to citizenship, residence,
exchange control approval, beneficial ownership of any securities, compliance with applicable law,
regulations, provisions of or governing Deposited Securities and terms of the Deposit Agreement and
this ADR, as it may deem necessary or proper; and (c) compliance with such regulations as the
Depositary may establish consistent with the Deposit Agreement and any regulations which the
Depositary is informed of in writing by the Company which are deemed desirable by the Depositary,
the Company or the Custodian to facilitate compliance with any applicable rules or regulations of
the Banco Central do Brasil or Comissão de Valores Mobiliários. The issuance of ADRs, the
acceptance of deposits of Shares, the registration, registration of transfer, split-up or
combination of ADRs or, subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the ADR Register or any
register for Deposited Securities is closed or when any such action is deemed advisable by the
Depositary or, in order to comply with applicable law, by the Company.
A-3
(5) Taxes. If any tax or other governmental charge shall become payable by or on behalf of
the Custodian or the Depositary with respect to this ADR, any Deposited Securities represented by
the ADSs evidenced hereby or any distribution thereon, such tax or other governmental charge shall
be paid by the Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or, subject to the last
sentence of paragraph (2), any withdrawal of such Deposited Securities until such payment is made.
The Depositary may also deduct from any distributions on or in respect of Deposited Securities, or
may sell by public or private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder hereof prior to
such sale), and may apply such deduction or the proceeds of any such sale in payment of such tax or
other governmental charge, the Holder hereof remaining liable for any deficiency, and shall reduce
the number of ADSs evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental authority or agency
all amounts (if any) required to be withheld and owing to such authority or agency by the Company;
and the Depositary and the Custodian will remit to the appropriate governmental authority or agency
all amounts (if any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to any tax that the
Depositary or the Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property in such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary shall distribute the
net proceeds of any such sale or the balance of any such property after deduction of such taxes to
the Holders entitled thereto. Each Holder of an ADR or an interest therein agrees to indemnify the
Depositary, the Company, the Custodian and any of their respective directors, employees, agents and
affiliates against, and hold each of them harmless from, any claims by any governmental authority
with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes,
reduced rate of withholding at source or other tax benefit obtained.
(6) Disclosure of Interests. To the extent that the provisions of or governing any
Deposited Securities may require disclosure of or impose limits on beneficial or other ownership of
Deposited Securities, other Shares and other securities and may provide for blocking transfer,
voting or other rights to enforce such disclosure or limits, Holders and all persons holding ADRs
agree to comply with all such disclosure requirements and ownership limitations and to comply with
any reasonable Company instructions in respect thereof. The Company reserves the right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited Securities so as to
permit the Company to deal directly with the Holder thereof as a holder of Shares and Holders agree
to comply with such instructions. The Depositary agrees to cooperate with the Company in its
efforts to inform Holders of the Company’s exercise of its rights under this paragraph and agrees
to consult with, and provide reasonable assistance without risk, liability or expense on the part
of the Depositary, to the Company on the manner or manners in which it may enforce such rights with
respect to any Holder.
A-4
(7) Charges of Depositary. The Depositary may collect from (i) each person to whom
ADSs are issued, including, without limitation, issuances against deposits of Shares, issuances in
respect of Share Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), issuances pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other transaction or event affecting
the ADSs or the Deposited Securities, and (ii) each person surrendering ADSs for withdrawal of
Deposited Securities or whose ADSs are cancelled or reduced for any other reason, U.S.$5.00 for
each 100 ADSs (or portion thereof) issued, delivered, reduced, cancelled or surrendered (as the
case may be). The Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge. The following additional charges shall be incurred by the Holders, by
any party depositing or withdrawing Shares or by any party surrendering ADSs, to whom ADSs are
issued (including, without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i) a fee of U.S.$0.02 or
less per ADS (or portion thereof) for any Cash distribution made pursuant to the Deposit Agreement,
(ii) to the extent not prohibited by the rules of the primary stock exchange upon which the ADSs
are listed, a fee of U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution or sale of securities pursuant to paragraph (10) hereof, such fee
being in an amount equal to the fee for the execution and delivery of ADSs referred to above which
would have been charged as a result of the deposit of such securities (for purposes of this
paragraph (7) treating all such securities as if they were Shares) but which securities or the net
cash proceeds from the sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv) a fee of U.S.$0.02 per ADS (or portion thereof) in each calendar year for the
services performed by the Depositary in administering the ADRs (which fee shall be assessed against
Holders as of the record date or dates set by the Depositary not more than once each calendar year
and shall be payable at the sole discretion of the Depositary by billing such Holders or by
deducting such charge from one or more cash dividends or other cash distributions), and (v) such
fees and expenses as are incurred by the Depositary (including without limitation expenses incurred
on behalf of Holders in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited Securities or otherwise
in connection with the Depositary’s or its Custodian’s compliance with applicable law, rule or
regulation. The Company will pay all other charges and expenses of the Depositary and any agent of
the Depositary (except the Custodian) pursuant to agreements from time to time between the Company
and the Depositary, except (i) stock transfer or other taxes and other governmental charges (which
are payable by Holders or persons depositing Shares), (ii) cable, telex and facsimile transmission
and delivery charges incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or Holders), (iii) transfer or
registration fees for the registration or transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities (which are payable by
persons depositing Shares or Holders withdrawing Deposited Securities; there are no such fees in
respect of the Shares as of the date of the Deposit Agreement), (iv) expenses of the Depositary in
connection with the conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary, any of the
Depositary’s agents, including, without limitation, the Custodian, or the agents of the
Depositary’s agents in connection with the servicing of the Shares or other Deposited Securities
(which charge shall be assessed against Holders as of the record date or dates set by the
Depositary and shall be payable at the sole discretion of the Depositary by billing such Holders or
by deducting such charge from one or more cash dividends or other cash distributions). Such charges
may at any time and from time to time be changed by agreement between the Company and the
Depositary.
A-5
(8) Available Information. The Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally available to the
holders of Deposited Securities, are available for inspection by Holders at the offices of the
Depositary and the Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders when furnished by the
Company. The Company is subject to the periodic reporting requirements of the Securities Exchange
Act of 1934 and accordingly files certain reports with the United States Securities and Exchange
Commission (the “Commission”). Such reports and other information may be inspected and copied at
public reference facilities maintained by the Commission located at the date hereof at 000 X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed by the
Depositary by the manual or facsimile signature of a duly authorized officer of the Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
By
Authorized Officer
By
Authorized Officer
The Depositary’s office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-6
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and (5), to the
extent practicable, the Depositary will distribute to each Holder entitled thereto on the record
date set by the Depositary therefor at such Holder’s address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such Holder’s ADRs:
(a) Cash.
|
Any U.S. dollars available to the Depositary resulting from a cash dividend or other cash distribution or the net proceeds of sales of any other distribution or portion thereof authorized in this paragraph (10) (“Cash”), on an averaged or other practicable basis, subject to (i) appropriate adjustments for taxes withheld, (ii) such distribution being impermissible or impracticable with respect to certain Holders, and (iii) deduction of the Depositary’s expenses in (1) converting any foreign currency to U.S. dollars by sale or in such other manner as the Depositary may determine to the extent that it determines that such conversion may be made on a reasonable basis, (2) transferring foreign currency or U.S. dollars to the United States by such means as the Depositary may determine to the extent that it determines that such transfer may be made on a reasonable basis, (3) obtaining any approval or license of any governmental authority required for such conversion or transfer, which is obtainable at a reasonable cost and within a reasonable time and (4) making any sale by public or private means in any commercially reasonable manner. If the Company shall have advised the Depositary pursuant to the provisions of the Deposit Agreement that any such conversion, transfer or distribution can be effected only with the approval or license of the Brazilian government or any agency thereof or the Depositary shall become aware of any other governmental approval or license required therefor, the Depositary may, in its reasonable discretion, apply for such approval or license, if any, as the Company or its Brazilian counsel may reasonably instruct in writing or as the Depositary may deem desirable including, without limitation, Central Bank registration. | |
(b)
Shares.
|
(i) Additional ADRs evidencing whole ADSs representing any Shares available to the Depositary resulting from a dividend or free distribution on Deposited Securities consisting of Shares (a “Share Distribution”) and (ii) U.S. dollars available to it resulting from the net proceeds of sales of Shares received in a Share Distribution, which Shares would give rise to fractional ADSs if additional ADRs were issued therefor, as in the case of Cash. | |
(c)
Rights.
|
(i) Warrants or other instruments in the discretion of the Depositary representing rights to acquire additional ADRs in respect of any rights to subscribe for additional Shares or rights of any nature available to the Depositary as a result of a distribution on Deposited Securities (“Rights”), to the extent that the Company timely furnishes to the Depositary evidence satisfactory to the Depositary that the Depositary may lawfully distribute the same (the Company has no obligation to so furnish such evidence), or (ii) to the extent the Company does not so furnish such evidence and sales of Rights are practicable, any U.S. dollars available to the Depositary from the net proceeds of sales of Rights as in the case of Cash, or (iii) to the extent the Company does not so furnish such evidence and such sales cannot practicably be accomplished by reason of the nontransferability of the Rights, limited markets therefor, their short duration or otherwise, nothing (and any Rights may lapse). |
A-7
(d)
Other
Distributions.
|
(i) Securities or property available to the Depositary resulting from any distribution on Deposited Securities other than Cash, Share Distributions and Rights (“Other Distributions”), by any means that the Depositary may deem equitable and practicable, or (ii) to the extent the Depositary deems distribution of such securities or property not to be equitable and practicable, any U.S. dollars available to the Depositary from the net proceeds of sales of Other Distributions as in the case of Cash. |
Such U.S. dollars available will be distributed by checks drawn on a bank in the United States for
whole dollars and cents. Fractional cents will be withheld without liability and dealt with by the
Depositary in accordance with its then current practices. Subject to the other provisions hereof
and of the Deposit Agreement, the Depositary shall cause any Cash distribution that is paid in a
currency other than U.S. dollars to be converted into U.S. dollars as promptly as reasonably
practicable under the circumstances after the receipt thereof.
(11) Record Dates. The Depositary may or shall if required, in each case after consultation
with the Company if practicable, fix a record date (which, to the extent applicable, shall be as
near as practicable to any corresponding record date set by the Company) for the determination of
the Holders who shall be responsible for the fee assessed by the Depositary for administration of
the ADR program and for any expenses provided for in paragraph (7) hereof as well as for the
determination of the Holders who shall be entitled to receive any distribution on or in respect of
Deposited Securities, to give instructions for the exercise of any voting rights, to receive any
notice or to act in respect of other matters and only such Holders shall be so entitled or
obligated.
(12) Voting of Deposited Securities. As soon as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders of Shares or other
Deposited Securities, the Depositary shall distribute to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials, (b) that each Holder on
the record date set by the Depositary therefor will, subject to any applicable provisions of
Brazilian law, rule and/or regulation be entitled to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Deposited Securities represented by the ADSs evidenced
by such Holder’s ADRs and (c) the manner in which such instructions may be given, including
instructions to give a discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the date established by
the Depositary for such purpose, the Depositary shall endeavor insofar as practicable and permitted
under the provisions of or governing Deposited Securities to vote or cause to be voted the
Deposited Securities represented by the ADSs evidenced by such Holder’s ADRs in accordance with
such instructions. The Depositary will not itself exercise any voting discretion in respect of any
Deposited Securities.
A-8
To the extent such instructions are not so received by the Depositary from any Holder, the
Depositary shall take such action as is necessary, upon the written request of the Company and
subject to applicable law, and the terms and conditions of the Deposited Securities, to cause such
underlying Shares to be counted for the purposes of satisfying applicable quorum requirements;
There can be no assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable such Holder to return voting instructions to
the Depositary in a timely manner.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and (5), the
Depositary may, in its reasonable discretion, amend this ADR or distribute additional or amended
ADRs (with or without calling this ADR for exchange) or cash, securities or property on the record
date set by the Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby authorized to
surrender any Deposited Securities to any person and, irrespective of whether such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule, regulation or
otherwise, to sell by public or private sale any property received in connection with) any
recapitalization, reorganization, merger, consolidation, liquidation, receivership, bankruptcy or
sale of all or substantially all the assets of the Company, and to the extent the Depositary does
not so amend this ADR or make a distribution to Holders to reflect any of the foregoing, or the net
proceeds thereof, whatever cash, securities or property results from any of the foregoing shall
constitute Deposited Securities and each ADS evidenced by this ADR shall automatically represent
its pro rata interest in the Deposited Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of them shall: (a)
incur no liability (i) if any present or future law, rule or regulation of the United States, The
Federative Republic of Brazil or any other country, or of any governmental or regulatory authority
or any securities exchange or market or automated quotation system, the provisions of or governing
any Deposited Securities, any present or future provision of the Company’s charter, any act of God,
war, terrorism or other circumstance beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strike, civil unrest,
revolutions, rebellions, explosions and computer failure) shall prevent, delay or subject to any
civil or criminal penalty any act which the Deposit Agreement or this ADR provides shall be done or
performed by it or them (including, without limitation, voting pursuant to paragraph (12) hereof),
or (ii) by reason of any exercise or failure to exercise any discretion given it in the Deposit
Agreement or this ADR; (b) assume no liability except to perform its obligations to the extent they
are specifically set forth in this ADR and the Deposit Agreement without gross negligence or bad
faith; (c) in the case of the Depositary and its agents, be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or
this ADR; (d) in the case of the Company and its agents hereunder be under no obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities
or this ADR, which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of counsel) and liability
be furnished as often as may be required; or (e) not be liable for any action or inaction by it in
reliance upon the advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder, or any other person believed by it to be competent to give such
advice or information. The Depositary, its agents and the Company may rely and shall be protected
in acting upon any written notice, request, direction or other document believed by them to be
genuine and to have been signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for the manner in which any such vote is cast or for the effect of any such
vote. The Depositary may rely upon instructions from the Company or its Brazilian counsel in
respect of any approval or license of the Brazilian government or any agency thereof required for
any currency conversion, transfer or distribution. The Depositary and its agents may own and deal
in any class of securities of the Company and its affiliates and in ADRs. Notwithstanding anything
to the contrary set forth in the Deposit Agreement or an ADR, the Depositary and its agents may
fully respond to any and all demands or requests for information maintained by or on its behalf in
connection with the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise related
hereto to the extent such information is requested or required by or pursuant to any lawful
authority, including without limitation laws, rules, regulations, administrative or judicial
process, banking, securities or other regulators. The Company has agreed to indemnify the
Depositary and its agents under certain circumstances and the Depositary has agreed to indemnify
the Company under certain circumstances. Neither the Company nor the Depositary nor any of their
respective agents shall be liable to Holders or beneficial owners of interests in ADSs for any
indirect, special, punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
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(15) Resignation and Removal of Depositary; the Custodian. The Depositary may resign as
Depositary by 60 days prior written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The Depositary may at any time be removed
by the Company by no less than 60 days prior written notice of such removal, to become effective
upon the later of (i) the 60th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may appoint substitute or additional Custodians and the term
“Custodian” refers to each Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and the Deposit
Agreement may be amended by the Company and the Depositary, provided that any amendment
that imposes or increases any fees or charges (other than stock transfer or other taxes and other
governmental charges, transfer or registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or that shall otherwise prejudice any substantial existing
right of Holders, shall become effective 30 days after notice of such amendment shall have been
given to the Holders. Every Holder of an ADR at the time any amendment to the Deposit Agreement so
becomes effective shall be deemed, by continuing to hold such ADR, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory provisions of applicable
law. Any amendments or supplements which (i) are reasonably necessary (as agreed by the Company and
the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities Act of
1933 or (b) the ADSs or Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders, shall be deemed not
to prejudice any substantial rights of Holders. Notwithstanding the foregoing, if any governmental
body or regulatory body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement or the form of ADR to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and the ADR at any time in
accordance with such changed laws, rules or regulations. Such amendment or supplement to the
Deposit Agreement in such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required for compliance.
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(17) Termination. The Depositary may, and shall at the written direction of the Company,
terminate the Deposit Agreement and this ADR by mailing notice of such termination to the Holders
at least 30 days prior to the date fixed in such notice for such termination; provided, however, if
the Depositary shall have (i) resigned as Depositary hereunder, notice of such termination by the
Depositary shall not be provided to Holders unless a successor depositary shall not be operating
hereunder within 60 days of the date of such resignation, and (ii) been removed as Depositary
hereunder, notice of such termination by the Depositary shall not be provided to Holders unless a
successor depositary shall not be operating hereunder on the 60th day after the
Company’s notice of removal was first provided to the Depositary. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under the Deposit Agreement
and this ADR, except to receive and hold (or sell) distributions on Deposited Securities and
deliver Deposited Securities being withdrawn. As soon as practicable after the expiration of six
months from the date so fixed for termination, the Depositary shall sell the Deposited Securities
and shall thereafter (as long as it may lawfully do so) hold in a segregated account the net
proceeds of such sales, together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata benefit of the Holders of
ADRs not theretofore surrendered. After making such sale, the Depositary shall be discharged from
all obligations to in respect of the Deposit Agreement and this ADR, except to account for such net
proceeds and other cash and for its obligations to the Company under Section 16 of the Deposit
Agreement. After the date so fixed for termination, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the Depositary and its agents
(including, without limitation, those under Section 16 of the Deposit Agreement).
(18) Appointment. Each Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and conditions of the
Deposit Agreement shall be deemed for all purposes to (a) be a party to and bound by the terms of
the Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions
contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the Depositary may deem
necessary or appropriate under the Deposit Agreement to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the conclusive determinant of
the necessity and appropriateness thereof.
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