Filed
pursuant to Rule 424(b)(3) Registration
Statement
on Form F-6 Reg. No. 333-160187
EXHIBIT
A
[FORM
OF ADR]
Number:_________
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CUSIP
NUMBER: _______
American Depositary Shares (each American Depositary Share
representing the right to receive one (1) fully paid common
share)
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AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
COMMON SHARES
of
FIBRIA
CELULOSE 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, ações ordinárias (the “Shares”), of Fibria
Celulose S.A., a corporation incorporated under the laws of Brazil and
previously known as “Votorantim Celulose e Papel S.A.” (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 Itaú (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 Liquidaçãoe
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:
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(i)
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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;
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(ii)
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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;
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(iii)
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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);
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(iv)
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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;
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(v)
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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
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(vi)
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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.
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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:
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(a)
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taxes
(including applicable interest and penalties) and other governmental
charges;
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(b)
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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;
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(c)
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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;
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(d)
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the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
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(e)
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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
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(f)
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the
fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the delivery or servicing of Deposited
Securities.
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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.
Transfer
Agent and Registrar
|
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CITIBANK,
N.A.
as
Depositary
|
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By:
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By:
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Authorized
Signatory
|
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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 60
th
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 60
th
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:
|
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|
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By:
Title:
|
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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.
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__________________________
SIGNATURE
GUARANTEED
|
|
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All endorsements or assignments of ADRs must be guaranteed by a
member of a Medallion Signature Program approved by the Securities
Transfer Association, Inc.
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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”]