Filed pursuant to Rule 424(b)(3)
Registration Statement on Form F-6 Registration No. 333-160187
EXHIBIT A
[FORM OF ADR]
Number:__________ CUSIP NUMBER: _______
American Depositary Shares (each
American Depositary Share
representing the right to
receive one (1) fully paid
common share)
|
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED COMMON SHARES
of
VOTORANTIM CELULOSE E PAPEL S.A.
(Incorporated 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 (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS") representing deposited common
shares, including evidence of rights to receive such common shares, acoes
ordinarias (the "Shares"), of Votorantim Celulose e Papel S.A., a corporation
incorporated under the laws of Brazil (the "Company"). As of the date of the
Deposit Agreement (as hereinafter defined), each ADS represents the right to
receive one (1) Share deposited under the Deposit Agreement with the Custodian,
which at the date of execution of the Deposit Agreement is Banco Itau (the
"Custodian"). The ADS(s)-to-Share(s) ratio is subject to amendment as provided
in Articles IV and VI of the Deposit Agreement. The Depositary's Principal
Office is located at 388 Greenwich Street, New York, New York 10013, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("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 12, 2009 (as amended and supplemented from time to
time, the "Deposit Agreement"), by and among the Company, the Depositary, and
all Holders and Beneficial Owners from time to time of ADSs issued thereunder.
The Deposit Agreement sets forth the rights and obligations of Holders and
Beneficial Owners of ADSs and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
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 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 ADR are summaries of
certain provisions of the Deposit Agreement and the Articles of Association 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 Articles of Association, 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. The Depositary may issue Uncertificated ADSs
subject, however, to the terms and conditions of Section 2.13 of the Deposit
Agreement.
(2) Withdrawal of Deposited Securities.The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs 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 ADR) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if applicable and so required by the Depositary, this
ADR Delivered to the Depositary for such purpose has been properly endorsed in
blank or is 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 ADR evidencing the surrendered ADSs, of the
Deposit Agreement, of the Company's Articles of Association, of any applicable
laws and the rules of the Companhia Brasileira de Liquidacaoe Custodia S.A. (the
"CBLC"), 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
ADR(s) 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, of this ADR evidencing the ADS so
cancelled, of the Articles of Association of the Company, of any applicable laws
and of the rules of the CBLC, and to the terms and conditions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one (1) Share. In the case of Delivery to it of ADSs representing a number 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 ADSs 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 ADR 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 ADR, 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 ADRs. The Registrar shall
register the transfer of this ADR (and of the ADSs represented hereby) on the
books maintained for such purpose and the Depositary shall (x) cancel this ADR
and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by this ADR when canceled by the Depositary, (y) cause the Registrar
to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order
of the person entitled thereto, if each of the following conditions has been
satisfied: (i) this ADR 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 surrendered ADR has been
properly endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this surrendered ADR 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 ADR, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this ADR (and
of the ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this ADR (canceled), (y) cause the Registrar to countersign such new ADRs, and
(z) Deliver such new ADRs to or upon the order of the Holder thereof, if each of
the following conditions has been satisfied: (i) this ADR 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 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
ADR, 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, the registration of issuance, transfer,
split-up, combination or surrender, of any ADR, 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 an ADR 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 Section 5.9 and Exhibit B to the Deposit Agreement and
in this ADR, (ii) the production of proof satisfactory to it as to the identity
and genuineness of any signature or any other matters contemplated in Section
3.1 of the Deposit Agreement, and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of ADRs or ADSs
or to the withdrawal of Deposited Securities and (B) such reasonable regulations
as the Depositary and the Company may establish consistent with the provisions
of this ADR, 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 ADSs in particular
instances may be refused, or the registration of transfer of ADSs 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 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 or
regulation, any government or governmental body or commission or any securities
exchange on which the Shares or ADSs are listed, or under any provision of the
Deposit Agreement or this ADR, or under any provision of, or governing, the
Deposited Securities, or because of a meeting of shareholders of the Company or
for any other reason, subject, in all cases to paragraph (24). Notwithstanding
any provision of the Deposit Agreement or this ADR to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities
associated therewith 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 ADSs
or the withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(l) of the General Instructions to
Form F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the Company
pursuant to applicable law, the rules and requirements of the BACEN, the CVM,
the BM&FBOVESPA, and of any other stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Association of the
Company, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and 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. The Depositary
agrees to use its reasonable efforts to forward, upon request of the Company and
at the Company's expense, any such request from the Company to the Holders and
to forward to the Company any such response to such requests received by the
Depositary.
The Depositary and the Company shall comply with paragraph 3, article 3 of
Regulation Annex V to Resolution 1.289.87 (as published in Resolution 1.927/92)
of the Brazilian Monetary Council, and agree to furnish the CVM and the BACEN,
whenever required, information or documents related to the approved ADR program,
the Deposited Securities and distributions thereon.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR 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 Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of the 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 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 Articles of Association of the Company. Nothing herein or in the
Deposit Agreement shall be interpreted as obligating the Depositary or the
Company to ensure compliance with the ownership restrictions described herein or
in Section 3.5 of the Deposit Agreement.
Applicable laws and regulations, including those of the BACEN, the CVM and
BM&FBOVESPA may require holders and beneficial owners of Shares, including the
Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and
obtain regulatory approvals in certain circumstances. Holders and Beneficial
Owners of ADSs are solely responsible for determining and complying with such
reporting requirements, and for obtaining such approvals. Each Holder and each
Beneficial Owner hereby agrees to make such determination, file such reports,
and obtain such approvals to the extent and in the form required by applicable
laws and regulations as in effect from time to time. Neither the Depositary, the
Custodian, the Company or any of their respective agents or affiliates shall be
required to take any actions whatsoever on behalf of Holders or Beneficial
Owners to determine and satisfy such reporting requirements or obtain such
regulatory approvals under applicable laws and regulations.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any Deposited Securities, ADSs and
ADRs shall be payable by the Holders and Beneficial Owners to the Depositary.
The Company, the Custodian and/or Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities, and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities, and apply such distributions and sale proceeds in payment of any
taxes (including applicable interest and penalties) or charges that are or may
be payable by Holders or Beneficial Owners in respect of the Deposited
Securities, ADSs and ADRs, the Holder and the Beneficial Owner hereof remaining
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
of ADSs, register the split-up or combination of ADRs and (subject to paragraph
(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 any of
their agents, officers, 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 (v) the Shares presented for deposit are not, and the ADSs issuable
upon such deposit will not be, Restricted Securities (except as contemplated in
Section 2.14 of the Deposit Agreement), and (vi) 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 the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and 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, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs 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 on the books of the
Company or 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
and the applicable ADR(s). The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any ADR or ADS
or the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof or, to the extent not limited by paragraph (24), the delivery
of any Deposited Securities until such proof or other information is filed or
such certifications are executed, or such representations and warranties are
made or such other information or 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:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares (excluding issuances as
a result of distributions described in paragraph (iv) below),
a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction
thereof) so issued under the terms of the Deposit Agreement;
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities or to any
person to whom Deposited Securities are delivered, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof)
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADSs, a fee not in
excess of U.S. $2.00 per annum100 ADSs (or fraction thereof)
held for the distribution of cash dividends or other cash
distributions (i.e., sale of rights and other entitlements);
(iv) Stock Distribution /Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for (a) the distribution of stock
dividends or other free stock distributions or (b) the
exercise of rights to purchase additional ADSs;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of securities other than ADSs or rights
to purchase additional ADSs; and
(vi) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $2.00 per annum per 100 ADSs (or fraction
thereof) held on the applicable record date(s) established by
the Depositary.
In addition, Holders, Beneficial Owners, persons depositing Shares and
persons surrendering ADSs for cancellation and for the purpose of withdrawing
Deposited Securities shall be responsible for the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) 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;
(c) 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;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) 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
(f) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
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 contemplated
by paragraph (22) of this ADR and as contemplated in the Deposit Agreement. The
Depositary will provide, without charge, a copy of its latest fee schedule to
anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS Record Date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS Record Date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may reimburse the Company for certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
agree from time to time. The Company shall pay to the Depositary such fees and
charges and reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree from time to time. Responsibility for
payment of such charges and reimbursements may from time to time be changed by
agreement between the Company and the Depositary. Unless otherwise agreed, the
Depositary shall present its statement for such expenses and fees or charges to
the Company once every three months. The charges and expenses of the Custodian
are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each 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, such ADR has been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of this ADR (that is, the person in whose name this
ADR is registered on the books of the Depositary) as the absolute owner thereof
for all purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless, in the case of a
holder of ADSs, such holder is the Holder of this ADR 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 ADR. The Holder(s) of this ADR (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 ADR 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 ADRs. An ADR bearing the facsimile
signature of a duly-authorized signatory of the Depositary 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 ADR 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 or submits certain reports with the
Commission. These reports can be retrieved from the Commission's website
(www.sec.gov) and can be inspected and copied at the public reference facilities
maintained by the Commission located (as of the date of the Deposit Agreement)
at 100 F Street, N.E., Washington D.C. 20549. 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 ADSs which at all
reasonable times shall be open for inspection by the Company and by the Holders
of such ADSs, provided that such inspection shall not be, to the Registrar's
knowledge, for the purpose of communicating with Holders of such ADSs 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 ADSs.
The Registrar may close the transfer books with respect to the ADSs, 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 paragraph
(24).
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: ____________________________ By: _______________________________________
Authorized Signatory Authorized Signatory
|
The address of the Principal Office of the Depositary is 388 Greenwich
Street, New York, New York 10013, U.S.A.
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Upon the timely
receipt by the Depositary of a notice from the Company that it intends to make a
distribution of a cash dividend or other cash distribution, the Depositary shall
establish an ADS Record Date upon the terms described in Section 4.9. Upon
receipt of confirmation from the Custodian of receipt of any cash dividend or
other cash distribution on any Deposited Securities, or upon receipt of 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 Section 4.8 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
Section 4.8 of the Deposit Agreement), (ii) if applicable and unless previously
established, establish the ADS Record Date upon the terms described in Section
4.9 of the Deposit Agreement, and (iii) 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 ADSs 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 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, the
Custodian or the Depositary to the relevant governmental authority. Evidence of
payment thereof by the Company shall be forwarded by the Company to the
Depositary upon request.
Upon the timely receipt by the Depositary of a notice from the Company
that it intends to make a distribution that consists of a dividend in, or free
distribution of Shares, the Depositary shall establish an ADS Record Date upon
the terms described in Section 4.9 of the Deposit Agreement. Upon receipt of
confirmation from the Custodian of the receipt of the Shares so distributed by
the Company, the Depositary shall either (i) subject to Section 5.9 of the
Deposit Agreement, 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 the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other 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, take all actions necessary so that 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 of (a) the applicable fees and charges of, and 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 Section 4.1 of 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 Section 5.7 of the Deposit Agreement, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the 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 (b) fees and charges of, and the expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of Section 4.1 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 the timely receipt of a notice indicating that the Company wishes an
elective distribution in cash or Shares to be made available to Holders of ADSs
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 paragraph (16)
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 distribution shall be made 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 made as in the case
of a distribution in Shares upon the terms described in the Deposit Agreement.
If such elective distribution is not reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit Agreement,
the Depositary shall establish an ADS Record Date upon the terms of Section 4.9
of the Deposit Agreement and, to the extent permitted by law, distribute to
Holders, on the basis of the same determination as is made in Brazil in 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 elective distribution in Shares (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Shares.
Upon the 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 Section 4.9 of 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 such 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 requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation within the terms of
Section 5,7 of 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 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 practicable. The Depositary
shall, upon such sale, convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary and
(b) taxes) upon the terms hereof and of Section 4.1 of the Deposit Agreement. If
the Depositary is unable to make any rights available to Holders upon the terms
described in Section 4.4(a) of the Deposit Agreement or to arrange for the sale
of the rights upon the terms described in Section 4.4(b) of the Deposit
Agreement, 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
practicable 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 ADS 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
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.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or be able 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
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 practicable 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 applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the ADS Record Date 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
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, if applicable, upon
delivery of such ADSs by Holders thereof upon the terms set forth in Sections
4.1 and 6.2 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 the per share amount received by the
Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the
redemption of the Deposited Securities represented by ADSs (subject to the terms
of Section 4.8 of the Deposit Agreement and the applicable fees and charges of,
and expenses incurred by, the Depositary, and taxes) multiplied by the number of
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, solicitation of any consent or any
other matter, the Depositary shall fix a record date ("ADS Record Date") for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive 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 ADR and Sections 4.1
through 4.8 of the Deposit Agreement, only the Holders of ADSs 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. 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 in accordance with Section
4.9 of the Deposit Agreement. The Depositary shall, if requested by the Company
in writing in a timely manner (the Depositary having no obligation to take any
further action if the request shall not have been received by the Depositary at
least thirty (30) days prior to the date of such vote or meeting), at the
Company's expense and provided no U.S. legal prohibitions exist, distribute to
Holders as of the ADS Record Date: (a) the information as contained in such
notice of meeting or solicitation of consent or proxies, (b) a statement that
the Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the provisions of the Deposit Agreement, the
Company's Articles of Association 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.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the
Depositary may, to the extent not prohibited by law or regulations, or by the
requirements of the stock exchange on which the ADSs are listed, in lieu of
distribution of the materials provided to the Depositary in connection with any
meeting of, or solicitation of consents or proxies from, holders of Deposited
Securities, distribute to the Holders a notice that provides Holders with, or
otherwise publicizes to Holders, instructions on how to retrieve such materials
or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the
materials).
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Deposited Securities. 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, insofar as
practicable and permitted under applicable law and the provisions of the Deposit
Agreement, the Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder's ADSs in
accordance with such voting instructions.
The Depositary agrees not to, and shall take reasonable steps to ensure
that the Custodian and each of its nominees, if any, do not exercise any
discretion as to voting. The Depositary shall not, and shall take reasonable
steps to ensure that the Custodian and each of its nominees, if any, shall not
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 the ADSs, except pursuant to and in accordance with the voting
instructions timely received from Holders or as otherwise contemplated herein.
If the Depositary does not receive instructions from a Holder as of the ADS
Record Date on or before the date established by the Depositary for such purpose
or if the Depositary timely receives voting instructions from a Holder which
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 proposed resolutions, but only
for those proposed resolutions that the Board of Directors of the Company has
submitted to a vote of holder of Shares. 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 ADR, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of holders
of 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 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.
There can be no assurance that Holders generally or any Holder in particular
will 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,
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or 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 ADRs shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional or replacement
securities. In giving effect to such change, split-up, cancellation,
consolidation or other reclassification of Deposited Securities,
recapitalization, reorganization, merger, consolidation or sale of assets, 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 an opinion
of counsel to the Company satisfactory to the Depositary that such actions are
not in violation of any applicable laws or regulations, (i) issue and deliver
additional ADSs as in the case of a stock dividend on the Shares, (ii) amend the
Deposit Agreement and the applicable ADRs, (iii) amend the applicable
Registration Statement(s) on Form F-6 as filed with the Commission in respect of
the ADSs, (iv) call for the surrender of outstanding ADRs to be exchanged for
new ADRs, and (v) take such other actions as are appropriate to reflect the
transaction with respect to the ADSs. 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, subject to receipt of an opinion of Company's counsel
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, 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 upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement. The Depositary and the Company 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 to any Holder in particular or (ii) any
foreign exchange exposure or loss incurred in connection with such sale. The
Depositary shall not be responsible for 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 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 ADR, 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 on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future, of the Articles of Association 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 limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, 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 Articles of
Association 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 the 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 ADSs 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 ADR.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
ADR to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this ADR without negligence or bad faith. Neither
the Depositary nor the Company or their respective agents shall 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, for the failure or timeliness of any notice from the Company, or for
any action or failure to act by, or any information provided or not provided by,
DTC or any DTC participant.
None of the Company, the Depositary or the Custodian shall be liable for
any action or failure to act by any Holder or Beneficial Owner relating to the
Holder's or Beneficial Owner's obligations under any applicable Brazilian law or
regulation relating to foreign investment in Brazil in respect of a withdrawal
or sale of Deposited Securities, including, without limitation, any failure to
comply with a requirement to register such investment pursuant to the terms of
any applicable Brazilian law or regulation prior to such withdrawal or any
failure to report foreign exchange transactions to the BACEN, as the case may
be. Each Holder and Beneficial Owner will be responsible for the report of any
false information relating to foreign exchange transactions to the Custodian or
the BACEN, as the case may be, in connection with deposits or withdrawals of
Deposited Securities.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be liable for any acts or omissions made by a
predecessor depositary whether in connection with an act or omission of the
Depositary or in connection with any matter arising wholly prior to the
appointment of the Depositary or after the removal or resignation of the
Depositary, provided that in connection with the issue out of which such
potential liability arises the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary.
(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 60th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), 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 removal shall
be effective on the later of (i) the 60th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) 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 be required by the Company to 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
(other than as contemplated in Sections 5.8 and 5.9 of the Deposit Agreement).
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 Sections 5.8 and 5.9 of 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 ADSs and such other information relating to ADSs 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
paragraph 22, the Deposit Agreement and applicable law, this ADR 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
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 ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. Notice of
any amendment to the Deposit Agreement or any ADR shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders and Beneficial Owners to retrieve or receive the
text of such amendment (i.e., upon retrieval from the Commission's, the
Depositary's or the Company's website or upon request from the Depositary). 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
settled 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
ADSs, to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement and this ADR, if applicable, as amended or supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such ADS 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 an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement and this ADR 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, rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by distributing notice
of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If sixty
(60) days 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 in Section 5.4 of the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by distributing
notice of such termination to the Holders of all ADSs then outstanding at least
thirty (30) days prior to the date fixed in such notice for such termination.
The date so fixed for termination of the Deposit Agreement in any termination
notice so distributed by the Depositary to the Holders of ADSs is referred to as
the "Termination Date". Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement. If any ADSs shall remain outstanding after the Termination
Date, the Registrar and the Depositary shall not, after the Termination Date,
have any obligation to perform any further acts under the Deposit Agreement,
except that the Depositary shall, subject, in each case, to the terms and
conditions of the Deposit Agreement, continue to (i) collect dividends and other
distributions pertaining to Deposited Securities, (ii) sell securities and other
property received in respect of Deposited Securities, (iii) deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any securities or other
property, in exchange for ADSs surrendered to the Depositary (after deducting,
or charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental
charges for the account of the Holders and Beneficial Owners, in each case upon
the terms set forth in Section 5.9 of the Deposit Agreement), and (iv) take such
actions as may be required under applicable law in connection with its role as
Depositary under the Deposit Agreement. At any time after the Termination Date,
the Depositary may sell the Deposited Securities then held under the Deposit
Agreement and shall after such sale hold un-invested the net proceeds of such
sale, together with any other cash then held by it under the Deposit Agreement,
in an un-segregated account and without liability for interest, for the pro -
rata benefit of the Holders whose ADSs have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement except (i) to account for such net proceeds and
other cash (after deducting, or charging, as the case may be, in each case, the
fees and charges of, and expenses incurred by, the Depositary, and all
applicable taxes or governmental charges for the account of the Holders and
Beneficial Owners, in each case upon the terms set forth in Section 5.9 of the
Deposit Agreement), and (ii) as may be required at law in connection with the
termination of the Deposit Agreement. After the Termination Date, the Company
shall be discharged from all obligations under the Deposit Agreement, except for
its obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit
Agreement. The obligations under the terms of the Deposit Agreement of Holders
and Beneficial Owners of ADSs outstanding as of the Termination Date shall
survive the Termination Date and shall be discharged only when the applicable
ADSs are presented by their Holders to the Depositary for cancellation under the
terms of the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR 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 Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25), the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
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) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are to be delivered (w) 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, (x) 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, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) 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 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).
(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 ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS 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 ADR.
__________________________
SIGNATURE GUARANTEED
All endorsements or assignments of ADRs must
be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
|
Legends
[The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' [Common Shares] of the Company and as such do
not entitle the holders thereof to the same per-share entitlement as other
[Common Shares] (which are 'full entitlement' [Common Shares]) issued and
outstanding at such time. The ADSs represented by this ADR shall entitle holders
to distributions and entitlements identical to other ADSs when the [Common
Shares] represented by such ADSs become 'full entitlement' [Common Shares]"]
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