AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT, dated as of August , 2006, among EDP- ENERGIAS
DE PORTUGAL, S.A., a corporation organized under the laws of the Republic of
Portugal, and its successors (the “Company”), DEUTSCHE BANK TRUST COMPANY
AMERICAS, an
indirect wholly owned subsidiary of Deutsche Bank A.G.
(the
“Depositary”), and all Holders and Beneficial Owners of Receipts issued
hereunder (all such terms as hereinafter defined).
W
I T N E S S E T H :
WHEREAS,
the
Company has established an American depositary receipt facility to provide
for
the deposit of the Shares and the creation of ADSs representing the Shares
so
deposited pursuant to the Deposit Agreement, dated as of
June 16,
1997 in relation to the American depositary receipt program (the “Old Deposit
Agreement”), by and among the Company, Citibank, N.A. and all holders and
beneficial owners from time to time of American depositary receipts (“Old
Receipts”) issued thereunder;
WHEREAS,
pursuant to a letter dated ____________,
2006 (the “Notice Letter”) the Company has provided written notice to Citibank,
N.A. that the Company desires to remove Citibank, N.A. as depositary under
the
Old Deposit Agreement and has appointed the Depositary as successor depositary
thereunder;
WHEREAS,
pursuant to the Notice Letter, the Depositary has accepted its appointment
as
successor depositary under the Old Deposit Agreement and agreed to be bound
by
all of the terms and provisions binding upon the depositary under the Old
Deposit Agreement;
WHEREAS,
the
Company and Deutsche Bank Trust Company Americas, in its capacity as successor
depositary under the Old Deposit Agreement, now wish to amend and restate the
Old Deposit Agreement and the Old Receipts;
WHEREAS,
the
Company desires to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit of Shares from time to time with the Depositary or with the
Custodian as agent of the Depositary for the purposes set forth in this Deposit
Agreement, for the creation of ADSs representing the Shares so deposited and
for
the execution and delivery of Receipts evidencing the ADSs; and
WHEREAS,
the
Receipts are to be substantially in the form of Exhibit A hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided
in
this Deposit Agreement.
NOW,
THEREFORE, in consideration of the premises, it is agreed by and among the
parties hereto as follows:
ARTICLE
I
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION
1.01 Affiliate.
The
term “Affiliate” shall have the meaning assigned to it under Regulation C of the
Securities Act (as hereinafter defined).
SECTION
1.02 American
Depositary Shares.
The
terms “American Depositary Shares” and “ADSs” shall mean, with respect to any
Receipt issued hereunder, the rights evidenced by such Receipt including the
interests in the Deposited Securities granted to the Holders and Beneficial
Owners of Receipts pursuant to the terms and conditions of this Deposit
Agreement. Each American Depositary Share shall represent ten Shares, until
there shall occur a distribution upon Deposited Securities referred to in
Section 4.03 or a change in Deposited Securities referred to in Section 4.11
with respect to which additional Receipts are not executed and delivered, and
thereafter each American Depositary Share shall represent the Shares or
Deposited Securities specified in such Sections.
SECTION
1.03 Beneficial
Owner.
The
term “Beneficial Owner” shall have the meaning assigned to it under Section
13(d) of the Exchange Act and Rule 13d-3 thereunder. A Beneficial Owner may
or
may not be a Holder of the Receipt evidencing such American Depositary Share.
SECTION
1.04 Commission.
The
term “Commission” shall mean the Securities sand Exchange Commission of the
United States or any successor governmental agency in the United
States.
SECTION
1.05 Company.
The
term “Company” shall mean EDP- Energias de Portugal, S.A., a company
incorporated in Portugal, having its registered office at Xxxxx Xxxxxxx xx
Xxxxxx, 00, 0000-000 Xxxxxx, Xxxxxxxx, and its successors.
SECTION
1.06 Custodian;
Custodians.
The
term “Custodian” shall mean, as of the date hereof, BNP Paribas Securities
Services, having its principal office at Xx. 0 xx Xxxxxxx,
xxx.
000 0000-000 Xxxxxx, Xxxxxxxx, as Custodian and agent of the Depositary for
the purposes of this Deposit Agreement, and any other firm or corporation which
may be appointed by the Depositary pursuant to the terms of Section 5.05 as
a
successor or an additional custodian or custodians hereunder, as the context
shall require, and the term “Custodians” shall mean all of them,
collectively.
SECTION
1.07 Deliver;
Delivery.
The
terms “deliver” and “delivery” shall mean, when used in respect of American
Depositary Shares, Receipts, Deposited Securities and Shares, the physical
delivery of the certificate representing such security, or the electronic
delivery of such security by means of book-entry transfer, if
available.
2
SECTION
1.08 Deposit
Agreement.
The
term “Deposit Agreement” shall mean this Deposit Agreement as it may from time
to time be amended in accordance with the terms hereof.
SECTION
1.09 Depositary.
The
term “Depositary” shall mean Deutsche Bank Trust Company Americas, an
indirect wholly owned subsidiary of Deutsche Bank A.G.
and any
successor as depositary hereunder.
SECTION
1.10 Deposited
Securities.
The
term “Deposited Securities” as of any time shall mean Shares at such time
deposited under this Deposit Agreement and any and all other securities,
property and cash received by the Depositary or the Custodian in respect thereof
and at such time held hereunder, subject in the case of cash to the provisions
of Section 4.08.
SECTION
1.11 Dollars;
$; Euro.
The
term “dollars” or “Dollars”, “Cent” and the symbol “$” shall refer to the lawful
currency of the United States. The term “Euro” and the symbol “€” shall refer to
the unified currency of most nations of the European Union.
SECTION
1.12 Exchange
Act.
The
term “Exchange Act” shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
SECTION
1.13 Foreign
Currency.
The
term “Foreign Currency” shall have the meaning set forth in Section
4.08.
SECTION
1.14 Holder.
The
term “Holder” shall mean the person in whose name a Receipt is registered on the
books of the Depositary or the Registrar, if any, maintained for such purpose.
SECTION
1.15 Portugal.
The
term “Portugal” shall mean the Republic of Portugal.
SECTION
1.16 Principal
Office.
The
term “Principal Office”, when used with respect to the Depositary, shall mean
the principal office of the Depositary at which at any particular time its
depositary receipt business shall be administered, which, at the date of this
Deposit Agreement, is located at 00 Xxxx Xxxxxx, XXX Xxxxxxxxxx, Xxx Xxxx,
Xxx
Xxxx 10005, U.S.A.
SECTION
1.17 Receipts.
The
term “Receipts” shall mean the American Depositary Receipts evidencing American
Depositary Shares issued hereunder, as such American Depositary Receipts may
be
amended from time to time in accordance with the provisions of this Deposit
Agreement. A Receipt may evidence any number of American Depositary
Shares.
Receipts may
be
either in physical certificated form or maintained through book-entry notations
on the books and records of the Depositary (“Book-Entry Receipts”). Receipts in
physical certificated form, and the terms and conditions governing the
Book-Entry Receipts, shall be substantially in the form of Exhibit A annexed
hereto. References to Receipts shall include certificated Receipts and
Book-Entry Receipts, unless the context otherwise requires.
SECTION
1.18 Registrar.
The
term “Registrar” shall mean the Depositary or, with the approval of the Company,
any bank or trust company having an office in the Borough of Manhattan, the
City
of New York which shall be appointed by the Depositary to register Receipts
and
transfers of Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary, with the approval of the Company, for such
purposes. Registrars (other than the Depositary) may be removed and substitutes
appointed by the Depositary with the approval of the Company. Each Registrar
(other than the Depositary) appointed pursuant to this Deposit Agreement shall
give notice in writing to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
3
SECTION
1.19 Restricted
Securities.
The
term “Restricted Securities” shall mean Shares, or Receipts representing such
Shares, which are either (i) acquired directly or indirectly from the Company
or
any of its Affiliates in a transaction or chain of transactions not involving
any public offering, (ii) subject to resale limitations under the Securities
Act, as defined below, or the rules issued thereunder, (iii) held by any person
or entity which is an Affiliate of the Company, or (iv) subject to any
restrictions on sale or deposit under the laws of the United States, or
Portugal, or under a shareholder agreement or the Articles of Association of
the
Company or under the regulations of an applicable securities exchange.
SECTION
1.20 Securities
Act.
The
term “Securities Act” shall mean the United States Securities Act of 1933, as
from time to time amended.
SECTION
1.21 Share
Registrar.
The
term “Share Registrar” shall mean the Central de Valores Mobiliários, and
successors thereto, as the entity in accordance with Portuguese law with the
powers to record the transfer and registration of Shares.
SECTION
1.22 Shares.
The
term “Share” shall mean the Company’s ordinary shares in registered form nominal
value €1 each, validly issued and outstanding and shall include evidence of the
right to be registered with the Share Registrar as the owner of Shares;
provided
that in
no event shall Shares include evidence of the right to be registered with the
Share Registrar as the owner of Shares with respect to which the full purchase
price has not be paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided
further, however,
that,
if there shall occur any change in nominal value, split-up or consolidation
or
any other reclassification or, upon the occurrence of an event described in
Section 4.11, an exchange or conversion in respect of the Shares of the Company,
the term ‘Shares” shall thereafter represent the successor securities resulting
from such change in par value, split-up or consolidation or such other
reclassification or such exchange or conversion.
XXXXXXX
0.00 Xxxxxx
Xxxxxx.
The
term “United States” shall have the meaning assigned to it under Regulation S
under the Securities Act.
ARTICLE
II
FORM
OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION
2.01 Form
and Transferability of Receipts.
American Depositary Shares shall be evidenced by definitive Receipts which
shall
be printed or lithographed or shall be in such other form as may be agreed
upon
by the Company and the Depositary, and in any event shall be substantially
in
the form set forth in Exhibit A annexed to this Deposit Agreement, with
appropriate insertions, modifications and omissions, as hereinafter provided.
Receipts in certificated form shall be executed and dated by the Depositary
by
the manual signature of a duly authorized officer of the Depositary;
provided,
however,
that
such signature may be a facsimile if such Receipts are countersigned by the
manual signature of a duly authorized employee of the Registrar and dated by
such employee; and provided
further
that,
only with respect to the Receipts originally issued, the signatures of both
the
Depositary and the Registrar may be facsimiles. No Receipt in certificated
form
shall be entitled to any benefits under this Deposit Agreement or be valid
or
enforceable for any purpose, unless such Receipt shall have been executed by
the
manual signature of a duly authorized officer of the Depositary or the
Registrar, and such execution of any Receipt by manual signature shall be
conclusive evidence, and the only evidence, that such Receipt has been duly
executed and delivered hereunder. The Registrar shall maintain separate books
in
which each Receipt evidencing American Depositary Shares executed and delivered
as hereinafter provided and the transfer of each American Depositary Share
shall
be registered. Receipts bearing the facsimile signature of a duly authorized
officer of the Depositary, who was at the time of signature a proper officer
of
the Depositary, shall bind the Depositary, notwithstanding the fact that such
officer has ceased to hold such office prior to the execution of such Receipts
by the Registrar and their delivery or such officer did not hold such office
at
the date of such Receipts.
4
The
Receipts may, with the prior written consent of the Company (which consent
shall
not be unreasonably withheld), and upon the written request of the Company,
shall be endorsed with or have incorporated in the text thereof such legends
or
recitals or changes not inconsistent with the provisions of this Deposit
Agreement as may be necessary or enable the Depositary to perform its
obligations hereunder or as may be required by the Depositary or the Company
to
comply with any applicable law or regulations thereunder or with the rules
and
regulations of any securities exchange or market upon which American Depositary
Shares may be traded or to conform with any usage with respect thereto, or
to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
The
Receipts shall bear a CUSIP number that is different from any CUSIP number
that
was, is or may be assigned to any depositary receipts previously or subsequently
issued pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company which are not Receipts issued
hereunder.
Title
to a Receipt (and to each American Depositary Share evidenced thereby) subject
to any limitations set forth in such Receipt, when properly endorsed or
accompanied by proper instruments of transfer, including signature guarantees
in
accordance with standard industry practice, shall be transferable by delivery
with the same effect as in the case of a negotiable instrument under the laws
of
the State of New York; provided,
however,
that
the Depositary and the Company, notwithstanding any notice to the contrary,
may
deem and treat the Holder thereof as the absolute owner thereof for the purpose
of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Deposit Agreement to any
holder of a Receipt unless such holder is the registered Holder
thereof.
SECTION
2.02 Deposit
of Shares.
Subject
to the terms and conditions of this Deposit Agreement, Shares or evidence of
rights to be registered with the Share Registrar as the owner of Shares (other
than Restricted Securities) may be deposited by any person (in the case of
the
Company, or any Affiliate of the Company, subject to Section 5.07 hereof)
including the Depositary, in its individual capacity as owner of Shares, by
(i)
delivery through electronic transfer of Shares through the Central de Valores
Mobiliários to the account of any Custodian maintained for such purpose or (ii)
delivery to any custodian of evidence satisfactory to the Custodian that
irrevocable instructions have been given to cause such Shares to be transferred
to such account, in any case, accompanied by any appropriate instrument or
instruments of transfer, in a form satisfactory to such Custodian together
with
(i) all such certifications and payments (including, without limitation, those
referred to in Exhibit B hereto and amounts in respect of any applicable taxes
or duties) or evidence of such payments as may be reasonably required by the
Depositary or such Custodian in accordance with the provisions of this Deposit
Agreement, (ii) if the Depositary so requires, a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or person stated in such order a Receipt or Receipts for the number of American
Depositary Shares representing the Shares so deposited, and (iii) such
documentation and certification, if any, as the Company and Depositary may
require in order to comply with any applicable law.
5
No
Shares shall be accepted for deposit unless accompanied by (i) payment in
respect of any applicable taxes or duties or evidence of such payment as
provided above and (ii) evidence satisfactory to the Depositary (which may
be an
opinion of counsel) that any necessary approval has been granted by, or there
has been compliance with the rules and regulations of, the governmental agency
in Portugal, if any, which is then performing the function of the regulation
of
currency exchange.
If
required by the Depositary, Shares presented for deposit at any time, whether
or
not the transfer books of the Company or the Share Registrar are closed, shall
also be accompanied by (i) an agreement or assignment, or other instrument
satisfactory to the Depositary, that provides for the prompt transfer to the
Custodian or its nominee of any dividend, or right to subscribe for additional
Shares, or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of any
such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary and (ii) if the Shares
are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to vote such deposited
Shares for any and all purposes until the Shares so deposited are registered
in
the name of the Depositary or its nominee or the Custodian or its nominee.
At
the request, risk and expense of any holder of Shares, and for the account
of
such holder, the Depositary may receive Shares to be deposited, evidence that
Shares have been electronically transferred or that irrevocable instructions
have been given to cause the transfer of such Shares to the account of the
Custodian, together with the other orders, instruments and evidence herein
specified, for the purpose of forwarding such Shares to the Custodian for
deposit hereunder.
The
Depositary has instructed the Custodian, upon each delivery to a Custodian
of
Shares to be deposited hereunder (or other Deposited Securities pursuant to
Section 4.03, 4.04, 4.05 or 4.11), together with the other documents above
specified and payments required under this Deposit Agreement, to advise the
Depositary of such deposit, and to present, as soon as transfer and recordation
can be accomplished, such certificate or certificates, together with the
appropriate instrument or instruments of transfer, to the Share Registrar for
transfer and recordation of the Deposited Securities being deposited in the
name
of the Depositary or its nominee or such Custodian or its nominee.
6
Deposited
Securities shall be held by the Depositary or by a Custodian for the account
and
to the order of the Depositary, the Custodian or any of their nominees (on
behalf of Holders) at such other place or places as the Depositary shall
determine. The Depositary and the Custodian may refuse to accept Shares for
deposit whenever notified, as hereafter provided, that the Company has
restricted transfer of such Shares to comply with any ownership restrictions
referred to in Section 3.05 or under applicable laws, including the securities
laws of Portugal or the United States. The Company shall notify the Depositary
and the Custodian in writing with respect to any such restrictions on transfer
of its Shares for deposit hereunder or transfer of Receipts to any Holder.
SECTION
2.03 Execution
and Delivery of Receipts.
The
Depositary has instructed the Custodian, upon receipt by the Custodian of a
deposit of Shares pursuant to Section 2.02 hereof, (and in addition, if the
transfer books of the Company or the Share Registrar, if applicable, are open,
the Depositary may in its sole discretion require a proper acknowledgement
or
other evidence from the Company that any Deposited Securities have been recorded
upon the books of the Company or the Share Registrar, if applicable, in the
name
of the Custodian or its nominee or of the Depositary or its nominee) together
with all other required documents and payments required under this Deposit
Agreement, to notify the Depositary of such deposit and the person or persons
to
whom or upon whose written order a Receipt or Receipts are deliverable in
respect thereof and the number of American Depositary Shares to be evidenced
thereby. Such notification shall be made by letter or, at the request, risk
and
expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from such Custodian, or
upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Principal Office to or upon the order of the person or persons named in the
notice delivered to the Depositary, a Receipt or Receipts, registered in the
name or names requested by such person or persons and evidencing in the
aggregate the number of American Depositary Shares to which such person or
persons are entitled, but only upon payment to the Depositary of the charges
of
the Depositary for making a deposit and the issuance and delivery of such
Receipt or Receipts (as set forth in Section 5.09 and Exhibit B hereto) and
in
respect of all applicable taxes (except insofar as already accounted for) and
governmental charges and fees payable in connection with such deposit and the
transfer of the Deposited Securities and the issuance of the Receipt or
Receipts. The Depositary shall not be required to issue any fractional Receipts
or any Receipts for fractional Shares.
SECTION
2.04 Transfer
of Receipts; Combination and Split-up of Receipts.
The
Registrar, subject to the terms and conditions of this Deposit Agreement, shall,
without unreasonable delay, register transfers of Receipts on its transfer
books, upon any surrender to the Principal Office of the Depositary of a Receipt
by the Holder thereof in person or by duly-authorized attorney, properly
endorsed or accompanied by proper instruments of transfer (including signature
guarantees in accordance with standard industry practice and, in the case of
any
Receipt, the accurate completion of any endorsements appearing on such Receipt)
and duly stamped as may be required by the laws of the State of New York and
of
the United States. Subject to the terms and conditions of this Deposit
Agreement, including payment of the charges set forth in Section 5.09 and
Exhibit B hereto, the Depositary shall execute and, if the Depositary’s
signature is by facsimile, the Registrar shall manually countersign, a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of American Depositary
Shares as those evidenced by the Receipts surrendered, subject to receipt of
any
certifications, if any, as the Depositary and the Company may require in order
to comply with applicable laws.
7
The
Depositary, subject to the terms and conditions of this Deposit Agreement shall,
upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts and upon payment of the charges
set
forth in Section 5.09 and in Exhibit B hereto, execute and, if the Depositary’s
signature is by facsimile, the Registrar shall manually countersign and deliver,
a new Receipt or Receipts for any authorized number of American Depositary
Shares requested, evidencing the same aggregate number of American Depositary
Share as the Receipt or Receipts surrendered.
The
Depositary shall, upon the request of, or may, with the approval of the Company,
appoint one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders or persons entitled thereto and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary with the
approval of the Company. Each co-transfer agent appointed under this Section
2.04 (other than the Depositary) shall give notice in writing to the Company
and
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
SECTION
2.05 Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender, at the Principal Office of the Depositary, of a Receipt for the
purpose of withdrawal of the Deposited Securities represented thereby, and
upon
payment of (i) the charges of the Depositary for the making of withdrawals
and
cancellation of Receipts (as set forth at Section 5.09 and Exhibit B hereof)
and
(ii) all applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement, the Company’s Articles of Association, Section 7.08 hereof
and any other provisions of or governing the Deposited Securities and other
applicable laws, the Holder of such Receipt shall be entitled in the name of
the
Holder, or in a name specified by the Holder, to register with the Share
Registrar the Shares underlying such Receipts, and will be entitled to delivery,
to the Holder or upon such Holder’s order, of the Deposited Securities at the
time represented by the American Depositary Shares evidenced by such Receipt.
Subject to the last paragraph of this Section 2.05, such Deposited Securities
may be delivered in registered form or by electronic delivery. Such Deposited
Securities may be delivered by the (a) electronic delivery of such Deposited
Securities to such Holder or as ordered by such Holder through an account with
an institution recognized by the Share Registrar or delivery by other means
approved by the Company in accordance with Portuguese law and (b) delivery
of
any other securities, property and cash to which such Holder is then entitled
in
respect of such Receipts to such Holder or as ordered by him. Such delivery
shall be made without unreasonable delay subject to the penultimate paragraph
of
this Section 2.05.
A
Receipt surrendered for such purposes shall, if so required by the Depositary,
be properly endorsed in blank or accompanied by proper instruments of transfer
in blank, and if the Depositary so requires, the Holder thereof shall execute
and deliver to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be electronically delivered to
or
upon the written order of a person or persons designated in such order through
an account with an institution recognized by the Share Registrar, or delivery
by
other means approved by the Company in accordance with Portuguese law.
Thereupon, the Depositary shall direct the Custodian to deliver subject to
Sections 2.06, 3.01, 3.02, 5.09 and to the other terms and conditions of this
Deposit Agreement, to the Articles of Association of the Company, and to the
provisions of or governing the Deposited Securities and other applicable laws,
now or hereafter in effect, evidence of the electronic transfer of the Deposited
Securities represented by such Receipt to or for the account of such person,
except that the Depositary may make delivery to such person or persons at the
Principal Office of the Depositary of any dividends or distributions with
respect to the Deposited Securities represented by such Receipt, or of any
proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
8
The
Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. In the case of surrender
of
a Receipt evidencing a number of American Depositary Shares representing other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be recorded in the name of the Holder
surrendering such Receipt and shall deliver to the person surrendering such
Receipt the net cash proceeds from the sale by the Depositary of any remaining
fractional Share.
At
the request, risk and expense of any Holder so surrendering a Receipt, and
for
the account of such Holder, the Depositary shall direct the Custodian to forward
any cash or other property (other than rights) held in respect of, and any
certificate or certificates and other proper documents of or relating to title
to, the Deposited Securities represented by such Receipt to the Depositary
for
delivery at the Principal Office of the Depositary, and for further delivery
to
such Holder. Such direction shall be given by letter or, at the request, risk
and expense of such Holder, by facsimile transmission.
Deposited
Securities may be delivered by the Depositary or the Custodian to any person
only under the circumstances expressly contemplated in this
Agreement.
SECTION
2.06 Limitations
on Execution and Delivery, Transfer, etc. of Receipts; Suspension of Delivery,
Transfer, etc.
As a
condition precedent to the execution and delivery, registration, registration
of
transfer, split-up, combination or surrender of any Receipt, the delivery of
any
distribution thereon or withdrawal of any Deposited Securities, and subject
to
Section 7.08 hereof, the Depositary, the Custodian or the Share Registrar may
require (i) payment from the depositor of Shares or presenter of the Receipt
of
a sum sufficient to reimburse it for any tax or other governmental charge and
any share 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 payable by Holders as provided in Section 5.09,
or in Exhibit B hereof, (ii) the production of proof satisfactory to it as
to
the identity and genuineness of any signature or any other matter contemplated
by Section 3.01 hereof and (iii) compliance with (a) any applicable laws or
governmental regulations relating to Receipts or American Depositary Shares
or
to the withdrawal of Deposited Securities and (b) such reasonable regulations,
if any, as the Depositary and the Company may establish consistent with the
provisions of this Deposit Agreement.
9
After
consultation with the Company, the delivery of Receipts against deposits of
Shares generally or against deposits of particular Shares may be suspended,
or
the delivery of Receipts against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfers of Receipts generally may be suspended or the surrender of
outstanding Receipts for the purpose of withdrawal of Deposited Securities
may
be suspended, during any period when the transfer books of the Company, the
Depositary 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, any government
or
governmental body or commission or any securities exchange on which the Receipts
or Share are listed, or under any provision of this Deposit Agreement or
provisions of or governing Deposited Securities, or any meeting of shareholders
of the Company or for any other reason, subject, in all cases, to Section 7.08
hereof. Notwithstanding any provision of this Deposit Agreement or the Receipts
to the contrary, the surrender of outstanding Receipts and withdrawal of
Deposited Securities may not be suspended or refused, except as permitted in
General Instruction I.A.(1) to Form F-6 (as such instruction may be amended
from
time to time) under the Securities Act in connection with (i) temporary delays
caused by closing the transfer books of the Depositary, the Company or the
Share
Registrar of the Deposited Securities, 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, and (iii) compliance with any laws
or governmental regulations relating to the Receipts or to the withdrawal of
the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not, and it shall instruct the Custodian not to, knowingly accept for deposit
under this Deposit Agreement any Shares or other Deposited Securities required
to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares or other Deposited
Securities or any Shares or Deposited Securities the deposit of which would
violate any provisions of the Company’s Articles of Association.
SECTION
2.07 Lost
Receipts, etc.
In case
any Receipt shall be mutilated, destroyed, lost, or stolen, the Depositary
shall
execute and deliver a new Receipt of like tenor at the expense of the Holder
(i)
in the case of a mutilated Receipt, in exchange and substitution for such
mutilated Receipt upon cancellation thereof, or (ii) in lieu of and in
substitution for such destroyed, lost, or stolen Receipt, after the Holder
thereof (a) has delivered to the Depositary a written request for such exchange,
execution and delivery before the Depositary has notice that the Receipt has
been acquired by a bona fide purchaser, (b) has provided such security or
indemnity (including an indemnity bond) satisfactory to the Depositary as may
be
required by the Depositary to save it and any of its agents harmless, and (c)
has satisfied any other reasonable requirements imposed by the Depositary,
including, without limitation, evidence satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, the authenticity thereof and the
Holder’s ownership thereof.
SECTION
2.08 Cancellation
and Destruction of Surrendered Receipts; Maintenance of Records.
All
Receipts surrendered to the Depositary shall be canceled by the Depositary.
Canceled Receipts shall not be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose. The Depositary is
authorized to destroy Receipts so canceled except as otherwise required by
law.
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS OF RECEIPTS
SECTION
3.01 Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Holder may be required from time
to
time to file such proof of citizenship or residence, taxpayer status, payment
of
all applicable taxes or other governmental charges, exchange control approval,
compliance with applicable laws and the terms of this Deposit Agreement or
other
information (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 Share Registrar) to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably require by written request to the Depositary
consistent with its obligations hereunder. The Depositary and the Registrar,
as
applicable, may withhold the execution or delivery or registration of transfer
of any Receipt or the distribution or sale of any dividend or distribution
of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are
delivered to the Depositary’s, the Registrar’s and the Company’s satisfaction.
The Depositary shall provide the Company, in a timely manner, with copies or
original if necessary and appropriate of (i) any such proofs of citizenship
or
residence, taxpayer status, or exchange control approval which it receives,
and
(ii) any other information or documents which the Company may reasonably request
and which the Depositary shall request and receive from the Holder or any person
presenting Shares for deposit.
SECTION
3.02 Liability
of Holder for Taxes and Other Charges.
If any
tax or other governmental charge shall become payable by the Depositary with
respect to any Receipt or any Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, such tax or other governmental
charge shall be payable by the Holder of such Receipt to the Depositary. The
Depositary may refuse to effect any registration of transfer of all or part
of
such Receipt or to issue any new Receipt or Receipts or to permit any deposit
or
withdrawal of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt until such payment is made, and the Company and the
Depositary may withhold or deduct from any dividends or other distributions,
or
may sell for the account of the Holder thereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, and may apply such dividends or other distributions or the proceeds
of
any such sale in payment of such tax or other governmental charge, with the
Holder of such Receipt remaining liable for any deficiency.
SECTION
3.03 Representations
and Warranties on Deposit of Shares.
Each
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares are validly issued and outstanding,
fully
paid and non-assessable, that all preemptive rights, if any, with respect to
such Shares have been validly waived or exercised and that each such person
making such deposit is duly authorized so to do. Each such person shall also
be
deemed to represent that the Shares presented for deposit are not, and the
American Depositary Shares issuable upon such deposit will not be, Restricted
Securities. Such representations and warranties shall survive the deposit and
withdrawal of Shares and the issuance and cancellation of Receipts in respect
thereof. 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 reasonably necessary
to
correct the consequences thereof.
10
SECTION
3.04 Compliance
with Information Requests.
Notwithstanding any other provision of this Agreement, each Holder agrees to
comply with requests from the Company from time to time, including requests
made
pursuant to Portuguese law, the rules and requirements of the Lisbon Stock
Exchange and any other stock exchange on which the Shares 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 owns Receipts (and Shares as the case may
be)
and regarding the identity of any other person interested in such Receipts
and
the nature of such interest and various other matters, whether or not they
are
Holders at the time of such request. The Depositary agrees to use its reasonable
efforts to comply, at the Company’s expense, with written instructions received
from the Company in a timely manner requesting that the Depositary forward
any
such request from the Company to the Holders and to forward to the Company
any
such responses to such requests received by the Depositary.
SECTION
3.05 Ownership
Restrictions.
The
Company may restrict transfers of 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 American Depositary Shares where such
transfer may result in the total number of Shares represented by the American
Depositary Shares owned by a single Holder to exceed any such limits. The
Company may, in its sole discretion, instruct the Depositary to take action
with
respect to the ownership interest of any Holder in excess of the limitation
set
forth in the preceding sentence, including but not limited to a mandatory sale
or disposition on behalf of a Holder of the Shares represented by the American
Depositary Shares held by such Holder 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.
ARTICLE
IV
THE
DEPOSITED SECURITIES
SECTION
4.01 Power
of Attorney.
Each
Holder and Beneficial Owner, upon acceptance of American Depositary Share(s)
represented by a Receipt issued in accordance with the terms hereof, hereby
appoints the Depositary its attorney-in-fact, with full power to delegate,
to
act on its behalf and to take any and all steps or action provided for or
contemplated herein with respect to the Deposited Securities, to adopt any
and
all procedures necessary to comply with applicable law, including, but not
limited to, those set forth in this Article IV, and to take such further steps
or action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of this Deposit Agreement.
SECTION
4.02 Cash
Distributions.
Whenever the Depositary receives any cash dividend or other cash distribution
on
any Deposited Securities, the Depositary will, if at the time of receipt thereof
any amounts received in a Foreign Currency can in the judgment of the
Depositary, pursuant to Section 4.08, be converted on a practicable basis into
Dollars transferable to the United States, and subject to the Deposit Agreement,
promptly convert or cause to be converted such dividend or distribution into
Dollars and will distribute promptly the amount thus received (net of fees
of,
and expenses incurred by, the Depositary) to the Holders entitled thereto as
of
the record date fixed pursuant to Section 4.09, in proportion to the number
of
American Depositary Shares representing such Deposited Securities held by them
respectively. 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 distributable 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 Receipts then
outstanding. If the Company 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 American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded to the relevant governmental authority
by
the person holding the withheld amounts.
11
SECTION
4.03 Distribution
in Shares.
If any
distribution upon any Deposited Securities consists of a dividend in or free
distribution of Shares, the Company shall cause such Shares to be deposited
with
and registered with the Share Registrar in the name of the Custodian and
thereupon the Depositary may, with the Company’s approval, and shall, if the
Company so requests, subject to Section 5.07 either (i) distribute to the
Holders entitled thereto, as of the record date fixed pursuant to Section 4.09
in proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for American
Depositary Shares, which represent in aggregate the number of Shares received
as
such dividend or free distribution, subject to the terms of this Deposit
Agreement, including, without limitation, Sections 2.02, 2.03, 5.07 and 5.09;
in
lieu of delivering Receipts for fractional American Depositary Shares in any
such case, the Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.02 or (ii) if additional
Receipts are not so distributed (except as pursuant to (i) above), each American
Depositary Share shall thenceforth also represent pro rata the additional Shares
distributed upon the Deposited Securities represented thereby. 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, or, if after the Company,
in the fulfillment of its obligation under Section 5.07, 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, or if the
Company does not provide a satisfactory option as provided in Section 5.07,
the
Depositary may adopt such method as the Depositary may deem equitable and
practicable (after consultation with the Company) for the purpose of effecting
such distribution, including the disposal 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, or effect the distribution
of
unregistered Shares, and the Depositary shall distribute the net proceeds of
any
such sale after deduction of such taxes or charges to Holders entitled hereto
in
proportion to the number of American Depositary Shares held by them respectively
and the Depositary shall distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement.
SECTION
4.04 Rights.
In the
event that the Company shall offer or cause to be offered to the holders of
any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any other nature, the Depositary will, after consultation with the Company,
either (a) make such rights available to the Holders, (b) dispose of such rights
for the benefit of the Holders and make the net proceeds available in Dollars
to
the Holders or (c) allow such rights to lapse in the event such rights may
not
be made available to the Holders or may not be disposed of for the benefit
of
the Holders; provided,
however,
that
the Depositary will, if requested by the Company in writing, take action as
follows:
(i)
if at
the time of the offering of any rights, the Depositary determines in its
discretion, after the Company has obtained opinion(s) of counsel reasonably
satisfactory to the Depositary, that it is lawful and feasible to make such
rights available to all or certain Holders but not to others, by means of
rights, warrants or otherwise, the Depositary will distribute rights, warrants
or other instruments therefor in such form as it may determine, to the Holders
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, or employ
such
other method as it may deem feasible after the Company has obtained opinion(s)
of counsel reasonably satisfactory to the Depositary in order to facilitate
the
exercise, sale or transfer of rights or the securities obtainable upon exercise
of such rights, by such Holders; or
12
(ii)
if
at the time of the offering of any rights, the Depositary determines in its
discretion after the Company has obtained opinion(s) of counsel reasonably
satisfactory to the Depositary that it is not lawful or not feasible to make
such rights available to certain Holders or such other instruments are not
exercised and appear to be about to lapse, the Depositary shall use its
reasonable efforts to sell the rights, warrants or other instruments at public
or private sale, in a riskless principal capacity, at such place or places
and
upon such terms as it may deem proper, and allocate the proceeds of such sales
for the account of the Holder otherwise entitled to such rights, warrants or
other instruments upon an averaged or other practicable basis without regard
to
any distinctions among such Holders because of exchange restrictions or the
date
of delivery of any Receipt or Receipts, or otherwise, and distribute such net
proceeds so allocated to the extent practicable as in the case of a distribution
of cash pursuant to Section 4.02 hereof. Neither the Company nor the Depositary
shall be responsible for (i) any failure of the Depositary to determine that
it
may be lawful or feasible to make such rights available to Holders in general
or
any Holder or Holders in particular, (ii) any foreign exchange exposure or
loss
incurred in connection with such sale, or (ii) any foreign exchange exposure
or
loss incurred in connection with such sale, or (iii) any liability to the
purchaser of such rights, warrants or other instruments.
If
the
Depositary does not receive such written request from the Company, the
Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of counsel reasonably satisfactory to the Depositary, have discretion
as to the procedures to be followed (i) in making such rights available to
the
Holders, or (ii) in disposing of such rights on behalf of such Holders and
distributing the net proceeds available in Dollars to such Holders as in the
case of a distribution of cash pursuant to Section 4.02 hereof, or (iii) in
allowing such rights to lapse in the event such rights may not be made available
to Holders or be disposed of and the net proceeds thereof made available to
Holders.
Notwithstanding
anything to the contrary in this Section 4.04, 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 offer such rights to the Holders (i) unless
and until a registration statement under the Securities Act 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,
satisfactory to the Depositary or other evidence satisfactory to the Depositary
to the effect that the offering and sale of such securities to the Holders
of
such Receipts are exempt from or do not require registration under the
provisions of the Securities Act or any other applicable laws; provided,
however,
that
nothing in this Deposit Agreement shall create, or be construed to create,
any
obligation on the part of the Company to file a registration statement or to
endeavor to have such a registration statement declared effective.
13
References
in this Section 4.04 to “Holders” are to Holders as of the record date fixed
pursuant to Section 4.09.
SECTION
4.05 Distributions
Other Than Cash, Shares or Rights.
Whenever the Custodian shall receive any distribution other than cash, Shares
or
rights in respect of any Deposited Securities, the Depositary shall, after
consultation with the Company, and after the Company has obtained opinion(s)
of
counsel reasonably satisfactory to the Depositary that the proposed distribution
does not violate any applicable laws or regulations, cause the securities or
property so received to be distributed to the Holders entitled thereto, as
of
the record date fixed pursuant to Section 4.09 hereof, in proportion to the
number of American Depositary Shares representing such Deposited Securities
held
by them respectively, in any manner that the Depositary may deem equitable
and
practicable for accomplishing such distribution, after deduction or upon payment
of any fees and expenses of the Depositary or any taxes or other governmental
charge; provided,
however,
that,
if in the opinion of the Depositary or its counsel, it cannot cause such
securities or property to be distributed or such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including without limitation any requirement (i) that the Company, the
Depositary or the Custodian withhold an amount on account of taxes or other
governmental charges or (ii) that under applicable securities or exchange
control regulations or law such securities must be registered under the
Securities Act or other law in order to be distributed to Holders), the
Depositary deems all or any portion of such distribution not to be feasible,
the
Depositary shall, after consultation with the Company to the extent practicable,
adopt such method as it may deem equitable and practicable for the purpose
of
effecting such distribution or paying such taxes or governmental charge and
may
rely on such advice, which method may include, but not be limited to, the sale
(at public or private sale) of the securities or property thus received, or
any
part thereof, and the distribution of the net proceeds of any such sale (net
of
taxes, fees and expenses of the Depositary set forth in Section 5.09 or Exhibit
B hereof) by the Depositary to the Holders entitled thereto as in the case
of a
distribution received in cash, provided that any unsold balance of such
securities or property shall be distributed by the Depositary to the Holders
entitled thereto, if such distribution is feasible without withholding for
or on
account of any taxes or other governmental charges and without registration
under the Securities Act, in accordance with such equitable and practicable
method as the Depositary may have adopted.
SECTION
4.06 Distributions
with Respect to Deposited Securities in Bearer Form.
Subject
to the terms of this Article IV, distributions in respect of Deposited
Securities that are held by the Custodian in bearer form shall be made to the
Custodian for the account of the respective Holders of Receipts with respect
to
which any such distribution is made upon due presentation by the Custodian
or
the Custodian to the Company of any relevant coupons, talons, or certificates.
The Company shall promptly notify the Depositary and the Custodian of such
distributions. The Depositary has instructed the Custodian to promptly present
such coupons, talons or certificates, as the case may be, in connection with
any
such distribution.
SECTION
4.07 Redemption.
In the
event that the Company exercises any right of redemption in respect of Shares,
and the Company has issued a notice to the Depositary as set forth below, the
Depositary will redeem, from the amounts received by it in respect of such
redemption, that number of American Depositary Shares which represents the
number of Shares deposited hereunder so redeemed. Subject to Sections 4.02,
4.03
and 4.08 (to the extent applicable), the redemption price per American
Depositary Share to be redeemed will be equal to the per share amount received
by the Depositary upon the redemption of the Shares represented by such American
Depositary Share multiplied by the number of Shares (or the fraction of a Share)
represented by each such American Depositary Share. If less than all of the
outstanding Shares are redeemed, the American Depositary Shares to be redeemed
will be selected by lot or redeemed pro rata as may be determined by the
Depositary. Notice from the Company of its exercise of its rights of redemption
in respect of the Shares must be given to the Depositary not less than 30 days
nor more than 60 days prior to the date fixed for redemption. Promptly after
receiving such notice from the Company, the Depositary will deliver such notice
to all Holders.
14
SECTION
4.08 Conversion
of Foreign Currency.
Subject
to any restrictions imposed by Portuguese law, regulations or applicable
permits, the Depositary shall promptly convert or cause to be converted into
Dollars by sale or in any other manner that it may determine in accordance
with
applicable law, to the extent that in its judgment it can do so on a reasonable
basis and can transfer the resulting Dollars to the United States, all cash
dividends and other cash distributions by the Company denominated in a currency
other than Dollars (“Foreign Currency”) that it receives in respect of the
Deposited Securities, and to promptly distribute the resulting Dollar amount
(net of any reasonable and customary expenses of the Depositary and of any
amount withheld on account of taxes) to the Holders entitled thereto, in
proportion to the number of ADSs representing such Deposited Securities
evidenced by Receipts held by them respectively or, if the Depositary shall
have
distributed any warrants or other instruments that entitle the holders thereof
to such Dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Holders on account of exchange restrictions with regard to a particular Holder
or otherwise. The amount distributed to the Holders will be reduced by any
amount on account of taxes or other governmental charges to be withheld by
the
Company, the Depositary or a Custodian. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder
a
fraction of one cent.
If
such
conversion or distribution generally or with regard to a particular Holder
can
be effected only with the approval or license of any government or agency
thereof, the Depositary shall have discretion and authority to file such
application for approval or license, if any, as it may deem desirable. In no
event, however, shall the Depositary be obligated to make such a
filing.
If
at any
time the Depositary shall determine that in its judgment any Foreign Currency
received by the Depositary cannot be converted on a reasonable basis into
Dollars transferable to the United States, or if any approval or license of
any
government authority or agency thereof which is required for such conversion
and/or transfer is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period
as
determined by the Depositary, the Depositary shall either, in its discretion
distribute the Foreign Currency (or an appropriate document evidencing the
right
to receive such Foreign Currency) to, or hold such Foreign Currency (without
liability for interest thereon) for the respective accounts of, the Holders
entitled to receive the same.
If
any
such conversion of Foreign Currency, in whole or in part, cannot be effected
on
a reasonable basis for distribution in Dollars to some but not all of the
Holders entitled thereto, the Depositary will make such conversion and
distribution in Dollars to the extent permissible to the Holders for whom such
conversion and distribution is practicable and may distribute the balance of
the
Foreign Currency to, or hold such balance (without liability for interest
thereon) for the respective accounts of, the Holders for whom such conversion
and distribution is not practicable.
15
SECTION
4.09 Fixing
of 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 cash dividend or other cash distribution or any distribution other
than cash, or any rights to be issued with respect to the Deposited Securities,
or whenever for any reason the Depositary causes a change in the number of
Shares that are represented by each American Depositary Share, or whenever
the
Depositary shall receive notice of any meeting 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, after consultation with
the
Company, fix a record date as close as practicable to the record date fixed
by
the Company in respect of the Shares for the determination of the Holders of
Receipts who shall be entitled to receive such dividend, distribution rights
or
the net proceeds of the sale thereof, to give instructions for the exercise
of
voting rights at any such meeting, or to give or withhold such consent, or
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 American Depositary Share. Subject to the provisions of Section 4.02
through 4.08 and to the other terms and conditions of this Deposit Agreement,
the Holders of Receipts at the close of business on such record date shall
be
entitled to receive the amount distributable by the Depositary with respect
to
such dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively, or to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
SECTION
4.10 Voting
of Deposited Securities.
As soon
as practicable after the receipt of written notice of any meeting at which
the
holders of Shares are entitled to vote or of solicitation of consents or proxies
form holders of Shares or other Deposited Securities, the Depositary will,
to
the extent permitted by law, (and provided such written notice is received
by
the Depositary at least 30 days prior to the date of such meeting) mail or
cause
to be mailed a notice containing (i) such information as is provided to the
Depositary by the Company, (ii) a statement in English, in a form provided
by
the Company, that the Holders of record at the close of business on a specified
record date will be entitled, subject to the terms hereof, any applicable
provisions of Portuguese law, the Articles of Association of the Company and
the
provisions of or governing Deposited Securities (which provisions, if any,
shall
have been summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights pertaining to the number
of
Deposited Securities represented by their respective ADSs and (iii) a statement
addressing the manner in which such instructions may be given, including an
indication that instructions may be given (or may be deemed to have been given
in accordance with the next paragraph if no instructions are received prior
to
the deadline set for such purposes) to the Depositary to give a discretionary
proxy to a person designated by the Company. In the event notice of the meeting
and the request of the Company are not received by the Depositary at least
30
days prior to the meeting, the Depositary shall be under an obligation to notify
the Holders and shall be under no obligation to vote or cause to be voted the
Deposited Securities. A Holder of Receipts will only be entitled to exercise
the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by its respective ADSs. Holders on the close of business on the
record date specified by the Depositary shall be entitled, subject to any
applicable provisions of law and the Company’s Articles of Association, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by their
respective ADSs. The Depositary shall endeavor, insofar as practicable to vote
or cause to be voted the Shares so represented in accordance with any written
instructions of such Holder, including by aggregating, insofar as practicable,
in blocks of 100 ADSs of various Holders who have instructed the Depositary
in
identical manner as to the exercise of rights with respect to any matter to
be
voted upon.
16
Neither
the Custodian nor the Depositary shall vote the Shares or other Deposited
Securities represented by the ADSs other than in accordance with instructions
from the Holder and as described in the following paragraph. If the Depositary
does not receive instructions from a Holder on or before the record date
specified by the Depositary, under certain circumstances such Holder shall
be
deemed to have instructed the Depositary to give a discretionary proxy to the
person designated by the Company to vote the Shares or other Deposited
Securities.
Pursuant
to the Company’s Articles of Association, with the exception of the Portuguese
Republic and equivalent entities, no person may exercise more than 5% of
outstanding voting rights of the Company. [Pursuant to Portuguese law, no person
may acquire more than 10% of the Shares (either directly or in the form of
ADSs)
without the prior approval of the Ministry of Finance.] Holders of ADSs will
be
treated as holders of the Shares represented by the ADSs for the purposes of
determining the applicability of the foregoing limitations.
SECTION
4.11 Changes
Affecting Deposited Securities.
Upon
any change in nominal or par value, split-up, cancellation, consolidation or
any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement
or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company’s approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory
to
the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as in the case
of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited Shares, with necessary modifications to the form of Receipt
contained in Exhibit A hereto, specifically describing such new Deposited
Securities or corporate change. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, and with the Company’s
approval, 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 shall allocate the net proceeds of such sales 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 4.02. Neither the
Company nor the Depositary shall be responsible for (i) any failure by the
Depositary to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder or Holders in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such
securities.
17
SECTION
4.12 Available
Information.
The
Company will either be subject to the reporting requirements of the Exchange
Act
as such requirements apply to foreign private issuers, and accordingly, file
certain reports with the Commission or exempt therefrom by reason of the
exemption available under Rule 12g3-2(b) promulgated thereunder. Any reports
or
other submissions made to the Commission will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at the date hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
SECTION
4.13 Reports.
The
Depositary will make available for inspection by Holders at its Principal Office
any reports and communications received from the Company which are both (i)
received by the Depositary as the holder of the Deposited Securities and (ii)
made generally available to the holders of the Deposited Securities by the
Company. The Depositary will also send to the Holders copies of such reports
when furnished by the Company pursuant to this Deposit Agreement. The Company
will furnish the Depositary, in English, with all notices of shareholders’
meetings and other reports and communications that are made generally available
to its shareholders and annual reports, which will include a review of
operations, annual audited consolidated financial statements prepared in
conformity with International Financial Reporting Standards (“IFRS”) and an
opinion thereon by independent accountants of EDP-Energias de Portugal, S.A.
Any
annual reports on Commission Form 20-F will include a reconciliation to United
States generally accepted accounting principles of net income and shareholders’
equity. The Company will also furnish the Depositary, in English, with
semi-annual reports that will include unaudited semi-annual consolidated
financial information prepared in conformity with IFRS.
SECTION
4.14 List
of Holders.
Promptly upon written request by the Company, the Depositary shall furnish
to it
a list, as of a recent date, of the names, addresses and holdings of American
Depositary Shares of all Holders.
SECTION
4.15 Taxation.
The
Depositary or the Custodian will forward to the Company or its agents such
information from its records as the Company may reasonably request to enable
the
Company or its agent to file necessary reports with governmental authorities
or
agencies, and the Depositary, the Custodian or the Company or its agents may
file such reports as are necessary to reduce or eliminate applicable taxes
on
distributions in respect of Deposited Securities on dividends and other benefits
under applicable tax treaties for the Holders. In accordance with instructions
from the Company and to the extent practicable and at the expense of the
Company, the Depositary will take, or will cause the Custodian to take,
reasonable administrative actions to obtain tax refunds, reduced withholding
of
tax at source on dividends and other benefits under applicable tax treaties
with
respect to dividends and other distributions on the Deposited Securities.
Holders of American Depositary Shares evidenced by Receipts representing
Deposited Securities may be required from time to time to file such proof of
taxpayer status or residence, to execute such certificates and to make such
representations and warranties, or to provide any other information or documents
as the Depositary may deem necessary or proper to fulfill the Depositary’s
obligations under applicable law. Holders shall provide the Depositary, in
a
timely manner, with copies or originals if necessary and appropriate, of any
such proofs of residence, taxpayer status, beneficial ownership and any other
information or documents which the Depositary may reasonably request. The Holder
shall indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and Affiliates against, and hold each
of
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit obtained
for
such Holder pursuant to this Section 4.15.
18
ARTICLE
V
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION
5.01 Maintenance
of Office and Transfer Books by the Registrar.
Until
termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York,
an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with
the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of Receipts and transfers
of
Receipts which at all reasonable times shall be open for inspection by the
Company and by the Holders of such Receipts, provided that such inspection
shall
not be, to the Registrar’s knowledge, for the purpose of communicating with
Holders of such Receipts in the interest of a business or object other than
the
business of the Company or a matter related to this Deposit Agreement or the
Receipts.
The Registrar may close the transfer books with respect to the Receipts, at
any
time or from time to time, when deemed expedient 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 Section
7.08.
If any Receipts or the American Depositary Shares evidenced thereby are listed
on one or more stock exchanges or automated quotation systems in the United
States, the Depositary shall act as Registrar or, with the written approval
of
the Company, appoint a Registrar or one or more co-registrars for registration
of Receipts and transfers, combinations and split-ups, and to countersign such
Receipts in accordance with any requirements of such exchanges or systems.
Such
Registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary upon the written request or with the written
approval of the Company.
SECTION
5.02 Prevention
or Delay in Performance.
Neither
the Depositary nor the Company nor any of their respective controlling persons,
directors, employees, agents or affiliates shall incur any liability to any
Holder or any other person, if, by reason of any provision of any present or
future law or regulation of the United States, Portugal or any other country,
or
of any other governmental authority or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the Articles of Association
of the Company or any Deposited Securities or by reason of any provision of
any
securities issued or distributed by the Company, or any offering or distribution
thereof, or by reason of any act of God or war or other circumstances beyond
its
control, the Depositary, its controlling persons or its agents or the Company,
its controlling persons or its agents, shall be (a) 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 which by the terms of this
Deposit Agreement it is provided shall be done or performed or (b) obligated
to
do or perform any act which obligation is inconsistent with the obligations
of
this Deposit Agreement; nor shall the Depositary, its controlling persons or
its
agents or the Company, its controlling persons or its agents incur any liability
to any Holder or other person by reason of any non-performance or delay, caused
as aforesaid, in performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in
this
Deposit Agreement or in the Articles of Association of the Company or provisions
of or governing Deposited Securities. Where, by the terms of a distribution
pursuant to Section 4.02, 4.03, or 4.04, or an offering or distribution pursuant
to Section 4.05, 4.11 or 5.07, or in the Articles of Association of the Company,
or for any other reason, such distribution or offering may not be made available
to Holders, or some of them, and the Depositary may not dispose of such
distribution or offering on behalf of such Holders and make the net proceeds
available to such Holders, then the Depositary shall not make such distribution
or offering, and shall allow any such rights, if applicable, to
lapse.
19
SECTION
5.03 Obligations
of the Depositary, the Custodian and the Company.
Each of
the Company, its controlling persons and its agents assumes no obligation and
shall be subject to no liability under this Deposit Agreement or the Receipts
to
Holders or other persons, except that each of the Company and its agents agrees
to perform its obligations specifically set forth in this Deposit Agreement
without negligence or bad faith and using its reasonable judgment, without
any
liability on the part of the Company to any Holder.
Each of the Depositary, its controlling persons and its agents assumes no
obligation and shall be subject to no liability under this Deposit Agreement
or
the Receipts to Holders or other persons (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that the Depositary agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence or bad faith and using its
reasonable judgement without any liability on the part of the Depositary to
any
Holder.
Without limitation of the foregoing, neither the Depositary, its controlling
persons, nor any of its agents, nor the Company, its controlling persons nor
any
of its agents shall be (i) under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the Receipts, which in its opinion may involve
it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished as
often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary), or (ii) liable for any action or inaction
by it
in reliance upon the advice of or information from legal counsel (including
internal legal counsel), accountants, any person presenting Shares for deposit,
any Holder, or any other person believed by it in good faith to be competent
to
give such advice or information. The Depositary, its controlling persons, its
agents, any 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.
The Depositary and its agents shall not be liable for any failure to carry
out
any instructions to vote any of the Deposited Securities, or for the manner
in
which any vote is cast or the effect of any vote, provided that any such action
or omission is in good faith and in accordance with the terms of this Deposit
Agreement.
20
No disclaimer of liability under the Securities Act is intended by any provision
of this Deposit Agreement.
SECTION
5.04 Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election to do so delivered to the Company, such resignation to be effective
on the earlier of (i) the 60th day after delivery thereof to the Company, or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of
such removal, which notice shall be effective on the earlier of (i) the 60th
day
after delivery thereof to the Depositary, or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed,
the Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. Every successor depositary shall execute and deliver
to
its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor, but such predecessor, nevertheless,
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, (ii) duly assign, transfer and deliver
all right, title and interest of the Deposited Securities to such successor,
and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holder thereof
as
the successor may reasonably request. Any such successor depositary shall
promptly mail 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.
SECTION
5.05 The
Custodian.
The
Depositary, after consultation with the Company, may from time to time appoint
one or more agents to act for it as custodian hereunder. The Depositary has
initially appointed BNP Paribas Securities Services as Custodian and agent
of
the Depositary for the purpose of this Deposit Agreement. The Custodian or
its
successors in acting hereunder shall be subject at all times and in all respects
to the direction of the Depositary for the Shares and the American Depositary
Shares and Receipts with respect to which the Custodian acts as custodian and
shall be responsible solely to it. Any Custodian may resign and be discharged
from its duties. If, upon the effectiveness of such resignation, there should
be
no custodian acting hereunder, the Depositary shall, promptly after receiving
such notice, appoint a substitute custodian that is organized under the laws
of
Portugal with respect to the Deposited Securities with respect to which the
Custodian has so resigned which shall thereafter be the Custodian hereunder.
Whenever the Depositary determines, in its discretion and with the consent
of
the Company, that it is in the best interest of the Holders to do so, it may
appoint an additional custodian with respect to any Deposited Securities, or
discharge the Custodian with respect to any Deposited Securities and appoint
a
substitute custodian, which shall thereafter be Custodian hereunder with respect
to the Deposited Securities. Forthwith, upon its appointment, each such
substitute or additional custodian shall deliver to the Depositary and the
Company an acceptance of such appointment satisfactory in form and substance
to
the Depositary and the Company. Upon demand of the Depositary, any Custodian
shall deliver such of the Deposited Securities held by it together with all
records maintained by it as Custodian with respect to such Deposited Securities
as are requested of it to any other Custodian or such substitute or additional
custodian or custodians. Immediately upon any such change, the Depositary shall
given notice thereof in writing to all Holders of Receipts with respect to
which
such appointment has been made, each other Custodian and the
Company.
21
Upon the appointment of any successor depositary with respect to any Deposited
Securities and the corresponding American Depositary Shares and Receipts
hereunder, any Custodian then acting hereunder with respect to such Deposited
Securities shall forthwith become, without any further act or writing, the
agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder;
but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION
5.06 Notices
and Reports.
On or
before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action by
such
holders other than at a meeting, or of the taking of any action in respect
of
any cash or other distributions or the offering of any rights in respect of
Deposited Securities, the Company shall transmit to the Depositary and the
Custodian a copy of the notice thereof in the English language but otherwise
in
the form given or to be given to holders of Shares or other Deposited
Securities. The Company shall also furnish to the Custodian and the Depositary
a
summary, in English, of any applicable provisions or proposed provisions of
the
Articles of Association of the Company that may be relevant or pertain to such
notice of meeting or be the subject of a vote thereat.
The Depositary, at the Company’s expense, will arrange for the prompt
transmittal by the Custodian to the Depositary of such notices, and any other
reports and communications which are both (i) received by the Depositary, the
Custodian or the nominees of either as the holder of the Deposited Securities
and (ii) made generally available by the Company to holders of its Shares or
other Deposited Securities, and arrange for the mailing, at the Company’s
expense and if so requested by the Company, of copies thereof to all Holders
or
make such notices, reports and other communications available to all Holders
on
a basis similar to that for holders of Shares or other Deposited Securities
or
on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange requirement. The
Depositary may, at the Company’s expense, but shall not be required to, obtain
English translations or adequate English summaries of any notices, such reports
and communications that are not furnished to the Depositary in English. The
Company has delivered to the Depositary and the Custodian a copy of the
Company’s Articles of Association governing the Shares and any other Deposited
Securities issued by the Company or any Affiliate of the Company in connection
with such Shares, and promptly upon any amendment thereto or change therein,
the
Company shall deliver to the Depositary and the Custodian a copy of such
amendment thereto or change therein. The Depositary may rely upon such copy
for
all purposes of this Deposit Agreement.
22
The Depositary will, at the expense of the Company, make such copy, summary
and
any other notices, reports and other communications issued by the Company in
connection therewith available for inspection by the Holders of the Receipts
evidencing the Shares governed by such provisions at the Depositary’s Principal
Office, at the office of the Custodian and at any other designated transfer
office.
SECTION
5.07 Issuance
of Additional Shares, etc.
The
Company agrees that in the event that the Company issues as a dividend or
distribution (a) additional Shares, (b) rights to subscribe for Shares or other
Deposited Securities, (c) securities convertible or exchangeable into Shares,
or
(d) rights to subscribe for securities convertible or exchangeable into Shares,
the Company will promptly furnish to the Depositary a written opinion of counsel
for the Company, which counsel shall be satisfactory to the Depositary, stating
whether or not the circumstances of such issue require a registration statement
under the Securities Act or other applicable laws to be in effect prior to
the
delivery of the Receipts to be issued in connection with such securities or
the
issuance of such rights to the Holders entitled thereto; provided,
however,
that no
such opinion shall be required in the event of an issuance of Shares as a bonus,
share split or similar free distribution of Shares event. If in the opinion
of
such counsel a registration statement is required, such counsel shall furnish
to
the Depositary a written opinion as to whether such registration statement
is in
effect.
The Company agrees that it will obtain legal advice as to whether future
issuances for cash of (i) additional Shares, (ii) rights to subscribe for Shares
or other Deposited Securities, (iii) securities convertible into or exchangeable
for Shares, or (iv) rights to subscribe for securities convertible into or
exchangeable for Shares, require a registration statement under the Securities
Act covering such securities to be in effect. If, being so advised by counsel,
the Company determines that an issuance of such securities is required to be
registered under the Securities Act, the Company will register such issuance
to
the extent necessary, alter the terms of the issuance to avoid the registration
requirements of the Securities Act or direct the Depositary to take specific
measures with respect to the acceptance for deposit of Shares to prevent such
issuance from being made in violation of the registration requirements of the
Securities Act.
The Company agrees with the Depositary that neither the Company nor any
Affiliate will at any time (i) deposit any Shares or other Deposited Securities,
either upon original issuance or upon a sale of Shares or other Deposited
Securities previously issued and re-acquired by the Company or by any such
Affiliate, unless such transaction is registered under the Securities Act,
or is
exempt from registration thereunder as confirmed by a written opinion from
counsel for the Company in the United States, which counsel shall be reasonably
satisfactory to the Depositary, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities except under circumstances
complying in all respects with the Securities Act.
SECTION
5.08 Indemnification.
The
Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, employees, agents and Affiliates against, and hold each
of
them harmless from, any loss, liability, tax, charge or expense of any kind
whatsoever (including, but not limited to, the reasonable fees and expenses
of
counsel) that may arise (a) out of or in connection with any offer, issuance,
sale, resale, transfer, deposit or withdrawal of Receipts, American Depositary
Shares, the Shares, or other Deposited Securities, by the Company or any
Affiliate of the Company or any offering circular or registration statement
under the Securities Act (whether or not declared effective) in respect thereof,
except to the extent such loss, liability, tax, charge or expense (including
reasonable fees and expenses of counsel) arises out of information (or omissions
from such information) relating to the Depositary, furnished to the Company
by
the Depositary for use in any offering documents in respect thereof or (b)
out
of acts performed or omitted in connection with this Deposit Agreement and
the
Receipts, including, but not limited to, any delivery by the Depositary on
behalf of the Company of information regarding the Company in connection with
this Deposit Agreement, the Receipts, the American Depositary Shares, the
Shares, or any Deposited Securities, as the same may be amended, modified or
supplemented from time to time, in any such case (i) by the Depositary, the
Custodian or any of their respective directors, employees, agents and
Affiliates, except to the extent such loss, liability, tax, charge or expense
is
due to negligence or bad faith of any of them, or (ii) by the Company or any
of
its directors, employees, agents and affiliates.
23
The indemnities contained in the preceding paragraph shall not extend to any
liability or expense which may arise out of any Pre-Release Transaction (as
defined in Section 5.10 hereof) other than a Pre-Release Transaction entered
into at the request of the Company.
The Depositary agrees to indemnify the Company and its directors, employees,
agents and Affiliates against, and hold each of them harmless from, any loss,
liability, charge or expense of any kind whatsoever (including, but not limited
to, the reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted by the Depositary or any of its directors, employees or
Affiliates, including, but not limited to, any delivery by the Company on behalf
of the Depositary of information regarding the Depositary in connection with
this Deposit Agreement, the Receipts, the American Depositary Shares, the Shares
or any Deposited Securities, as the same may be amended, modified, or
supplemented from time to time, in any such case, due to the negligence or
bad
faith of the Depositary or any of its directors, employees, agents or
Affiliates.
The obligations set forth in this Section 5.08 shall survive the termination
of
this Deposit Agreement and the succession or substitution of any party
hereto.
Any person seeking indemnification hereunder (an “indemnified person”) shall
notify the person from whom it is seeking indemnification (the “indemnifying
person”) of the commencement of any indemnifiable action or claim promptly after
such indemnified person becomes aware of such commencement (provided that the
failure to make such notification shall not affect such indemnified person’s
rights otherwise than under this Section 5.08) and shall consult in good faith
with the indemnifying person as to the conduct of the defense of such action
or
claim, which defense shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any action or claim without the consent of
the
indemnifying person, which consent shall not be unreasonably
withheld.
SECTION
5.09 Charges
of the Depositary.
The
Company agrees to pay the expenses, fees or charges of the Depositary and the
Registrar, co-transfer agent and co-registrar, and any other agent of the
Depositary appointed under this Deposit Agreement, as indicated in this Section
5.09 and Exhibit B hereto to be paid by the Company, or in accordance with
the
written agreements between the Company and the Depositary from time to time,
in
each case other than the following items which are payable by Holders: (i)
the
charges of the Depositary for the execution and delivery of Receipts pursuant
to
Section 2.03, and the surrender of Receipts pursuant to Section 2.05, and for
the making of distributions pursuant to Section 4.02 through 4.07 hereof, (ii)
stamp, transfer and other applicable taxes and other governmental charges,
(iii)
such registration fees as may from time to time be in effect for the
registration of transfers, if any, of Shares generally on the share register
of
the Company (or any appointed agent of the Company for transfer and registration
of Shares which may be the Share Registrar) and accordingly applicable to
transfers of Shares to the name of the Depositary, a Custodian or their nominees
or the person who makes a withdrawal of Shares, on the making of deposits or
withdrawals pursuant to Sections 2.02 or 2.05, (iv) such facsimile transmission
and delivery expenses as are expressly provided in this Deposit Agreement to
be
at the expense of persons depositing Shares or Holders, (v) such customary
expenses and charges as are incurred by the Depositary in the conversion of
Foreign Currency pursuant to Section 4.08 (including, without limitation,
expenses incurred on behalf of Holders in connection with compliance with
foreign exchange control restrictions), and (vi) such fees and expenses as
are
incurred by the Depositary (including without limitation expenses incurred
on
behalf of Holders in connection with compliance with foreign exchange control
regulations) in delivery of Deposited Securities. Any other charges and expenses
of the Depositary hereunder will be paid by the Company after consultation
and
agreement in writing between the Depositary and the Company as to the amount
and
nature of such charges and expenses. Responsibility for payment of such charges
may at any time and form 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.
24
The right of the Depositary to receive payment of fees, charges and expenses
as
provided above shall survive the termination of this Deposit Agreement and,
as
to any Depositary, the resignation or removal of such Depositary as described
in
Section 5.04 for those fees, charges and expenses incurred prior to the
effectiveness of such resignation or removal.
SECTION
5.10 Certain
Rights of the Depositary; Limitations.
Subject
to the further terms and provisions of this Section 5.10, the Depositary and
its
agents, on their own behalf, may own and deal in any class of securities of
the
Company and any Affiliate of the Company and in Receipts. The Depositary may
issue Receipts against evidence of rights to be registered with the Share
Registrar as the owner of Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of rights to be registered with the
Share
Registrar as the owner of Shares furnished on behalf of the holder thereof.
In
its capacity as Depositary, the Depositary shall not lend Shares or Receipts
or
deliver Shares prior to the receipt or cancellation of Receipts; provided,
however,
that
the Depositary may issue Receipts prior to the receipt of Shares pursuant to
Section 2.02 (a “Pre-Release Transaction”) as provided below and deliver Shares
upon the receipt and cancellation of Receipts which were issued in a Pre-Release
Transaction but for which Shares may not yet have been received. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release
Transaction. Each Pre-Release Transaction shall be (a) accompanied by or subject
to a written agreement whereby the person or entity (the “Applicant”) to whom
Receipts are to be delivered (i) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or Receipts that
are
to be delivered in connection with such Pre-Release Transaction, (ii) agrees
to
indicate the Depositary as owner of such Shares or Receipts in its records
and
to hold such Shares or Receipts in trust for the Depositary until such Shares
or
Receipts are delivered to the Depositary or a Custodian, (iii) unconditionally
guarantees to deliver to the Depositary or a Custodian, as applicable, such
Shares or Receipts and (iv) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States 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 Receipts and Shares involved in
Pre-Release Transactions at any one time to thirty percent (30%) of the number
of Receipts then issued by the Depositary and in respect of which Shares are
deposited with the Depositary or a Custodian; provided,
however,
that
the Depositary may 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
Receipts and Shares involved in Pre-Release Transactions with any one person
on
a case by case basis as it deems appropriate. The Depositary will terminate
all
Pre-Release Transactions and enter no new Pre-Release Transactions to the extent
requested by the Company.
25
The Depositary may retain for its own account any compensation received by
it in
connection with the foregoing (including without limitation, earnings on the
collateral provided pursuant to (b) above). Collateral provided pursuant to
(b)
above, but not the earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
SECTION
5.11 List
of Restricted Securities Owners.
Upon
each issuance by the Company of any securities that are Restricted Securities,
the Company shall provide the Depositary a list setting forth, to the actual
knowledge of the Company, those persons or entities who beneficially acquired
Restricted Securities. The Company agrees to advise in writing each of the
person or entities so listed that such Restricted Securities are ineligible
for
deposit hereunder. The Depositary may rely on any such list and shall not be
liable for any action or omission made in reliance thereon.
ARTICLE
VI
AMENDMENT
AND TERMINATION
SECTION
6.01 Amendment,
Supplement.
The
form of the Receipts in respect of the Share and any provisions of this 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 consent of the Holders. Any
amendment or supplement which shall impose or increase any fees or charges
(other than taxes and other governmental charges), or which shall otherwise
prejudice any substantial existing right of Holders or Beneficial Owners, shall
not, however, become effective as to outstanding Receipts until the expiration
of 30 days after which notice of such amendment or supplements shall have been
given to the Holders of outstanding Receipts. The parties hereto agree that
any
amendments or supplements which (i) are reasonably necessary (as agreed by
the
Company and the Depositary) in order for (a) the American Depositary Shares
to
be registered on Form F-6 under the Securities Act or (b) the American
Depositary Shares or Shares to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges
or be
borne by Holders, shall be deemed not to 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 Receipt, to consent and agree to such amendment or supplement and
to
be bound by the Deposit Agreement as amended and supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable
law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed rules. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance.
26
SECTION
6.02 Termination.
The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Holders
of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. If 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 5.04, the Depositary may terminate this Deposit Agreement
by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination.
On
and after the date of termination of this Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Section 2.05 and subject to the conditions and restrictions
therein set forth, and upon payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of this Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to
the
Holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue
to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in this Deposit Agreement, and shall continue
to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.05, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights
or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of
the
Holder in accordance with the terms and conditions of this Deposit Agreement
and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may and intends to sell the Deposited Securities
then
held hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, in an unsegregated
escrow account, without liability for interest for the pro rata benefit of
the
Holders of Receipts whose Receipts have not theretofore been surrendered. After
making such sale, the Depositary shall be discharged from all obligations under
this Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and American Depositary Shares, except for its obligations to the
Company under Section 5.08 hereof and except to account for such net proceeds
and other cash (after deducting, or charging, as the case may be, in each case
the charges of the Depositary for the surrender of a Receipt, any expenses
for
the account of the Holder in accordance with the terms and conditions of this
Deposit Agreement and any applicable taxes or governmental charges or
assessments). Upon the termination of this Deposit Agreement as to Receipts,
the
Company shall be discharged from all obligations under this Deposit Agreement
as
to the Receipts and the Shares, Deposited Securities and American Depositary
Shares except for its obligations to the Depositary under Sections 5.08 and
5.09
hereof.
27
ARTICLE
VII
MISCELLANEOUS
SECTION 7.01 Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts shall constitute one
and the same agreement. Copies of this Deposit Agreement shall be kept by the
Depositary and shall be open to inspection by any Holder during business
hours.
SECTION
7.02 No
Third-Party Beneficiaries.
This
Deposit Agreement is for the exclusive benefit of the parties hereto and shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person. Nothing in this Agreement shall be deemed to give rise
to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and
agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and
its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any
of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships or (b) obligate the Depositary or any of its Affiliates
to
disclose such transactions or relationships or to account for any profit made
or
payment received in such transactions or relationships.
SECTION
7.03 Severability.
In case
any one or more of the provisions contained in this Deposit Agreement or in
the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.04 Holders
and Beneficial Owners as Parties; Binding Effect.
The
Holders and Beneficial Owners from time to time shall be parties to the Deposit
Agreement and shall be bound by all of the terms and conditions thereof and
of
any Receipt by acceptance thereof or any beneficial interest
therein.
Each Holder and each Beneficial Owner, upon acceptance of any Receipt or any
beneficial interest therein, thereby appoints the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to
take
any and all steps or actions provided for or contemplated herein with respect
to
the Deposited Securities and to take such further steps or action as the
Depositary in its sole discretion may deem necessary or appropriate to carry
out
the purposes of the Deposit Agreement.
SECTION
7.05 Notices.
Any and
all notices to be given to the company shall be deemed to have been duly given
if personally delivered or sent by mail, air courier or facsimile transmission,
confirmed by letter, addressed to EDP- Energias de Portugal, S.A., Prxxx Xxxxxxx
xx Xxxxxx, 00, 0000-000 Xxxxxx, Xxxxxxxx, Attention: Company Secretary, with
a
copy to Xxxxxx Xxxxxxxx, Xxxxx & Xxxxxxxx LLP, 2000 Xxxxxxxxxxxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000-0000, Attention: Xxxxx X. Xxxxxx, or to any other
address which the Company may specify in writing to the Depositary.
28
Any and all notices to be given to the Depositary shall be deemed to have been
duly given if personally delivered or sent by mail, air courier or facsimile
transmission, confirmed by letter, addressed to Deutsche Bank Trust Company
Americas, 60 Xxxx Xxxxxx, XXX Xxxxxxxxxx, Xxx Xxxx, Xxx Xxxx 00005, U.S.A.
Attention: ADR Department, or to any other address which the Depositary may
specify in writing to the Company.
Any and all notices to be given to the Custodian shall be deemed to have been
duly given if personally delivered or sent by mail, air courier or facsimile
transmission, confirmed by letter, addressed to Av. 0 xx Xxxxxxx, xxx. 000
0000-000 Xxxxxx, Xxxxxxxx, or to any other address which the Custodian may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly
given if personally delivered or sent by mail or facsimile transmission,
confirmed by letter, addressed to such Holder at the address of such Holder
as
it appears on the transfer books for Receipts of the Depositary, or, if such
Holder shall have filed with the Depositary a written request that notices
intended for such Holder be mailed to some other address, at the address
specified in such request. Notice to Holders shall be deemed to be notice to
Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or facsimile transmission shall
be deemed to be effective at the time when a duly addressed letter containing
the same (or a confirmation thereof in the case of a facsimile transmission)
is
deposited, postage prepaid, in a post-office letter box or delivered to an
air
courier service. The Depositary or the Company may, however, act upon any
facsimile transmission received by it from the other or from any Holder,
notwithstanding that such facsimile transmission shall not subsequently be
confirmed by letter as aforesaid.
SECTION
7.06 Governing
Law and Jurisdiction.
This
Deposit Agreement and the Receipts shall be interpreted in accordance with,
and
all rights hereunder and thereunder and provisions hereof and thereof shall
be
governed by, the laws of the State of New York without reference to the
principles of choice of law thereof. Except as set forth in the following
paragraph of this Section 7.06, the Company and the Depositary agree that the
federal or state courts in the State of New York shall have jurisdiction to
hear
and determine any suit, action or proceeding and to settle any dispute between
them that may arise out of or in connection with this Deposit Agreement and,
for
such purposes, each irrevocably submits to the non-exclusive jurisdiction of
such courts. The Company hereby irrevocably designates, appoints and empowers
[CT Corporation System (the “Agent”) now at 110 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000], as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail
of
any and all legal process, summons, notices and documents that may be served
in
any suit, action or proceeding brought against the Company in any federal or
state court as described in the preceding sentence or in the next paragraph
of
this Section 7.06. If for any reason the Agent shall cease to be available
to
act as such, the Company agrees to designate a new agent in the United States
on
the terms and for the purposes of this Section 7.06 reasonably satisfactory
to
the Depositary. The Company further hereby irrevocably consents and agrees
to
the service of any and all legal process, summons, notices and documents in
any
suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall
for
any reason prove to be ineffective or such Agent shall accept or acknowledge
such service), with a copy mailed to the Company by registered or certified
air
mail, postage prepared, to its address provided in Section 7.05. The Company
agrees that the failure of the Agent to give any notice of such service to
it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
29
Notwithstanding the foregoing, the Depositary and the Company unconditionally
agree that in the event that a Holder brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
this Deposit Agreement or (c) against both the Company and the Depositary,
in
either case, in any state or federal court of the United States, and the
Depositary or the Company have any claim, for indemnification or otherwise,
against each other arising out of the subject matter of such suit, action or
proceeding, then the Company and the Depositary may pursue such claim against
each other in the state or federal court in the United States in which such
suit, action, or proceeding is pending and, for such purposes, and the Company
and the Depositary irrevocably submit to the non-exclusive jurisdiction of
such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for
any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.06, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit
or
proceeding brought in any such court has been brought in an inconvenient
forum.
No disclaimer of liability under the Securities Act is intended by any provision
of the Deposit Agreement.
The provisions of this Section 7.06 shall survive any termination of this
Deposit Agreement, in whole or in part.
SECTION
7.07 Assignment.
Subject
to the provisions of Section 5.04 and Article IV hereof, this Deposit Agreement
may not be assigned by either the Company or the Depositary.
SECTION
7.08 Compliance
with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the Company
and the Depositary each agrees that it will not exercise any rights it has
under
this Deposit Agreement to prevent the withdrawal or delivery of Deposited
Securities in a manner which would violate the United States securities laws,
including, but not limited to, 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.
SECTION
7.08 Compliance
with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the Company
and the Depositary each agrees that it will not exercise any rights it has
under
this Deposit Agreement to prevent the withdrawal or delivery of Deposited
Securities in a manner which would violate the United States securities laws,
including, but not limited to, 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.
30
IN
WITNESS WHEREOF, EDP-ENERGIAS DE PORTUGAL, S.A. and DEUTSCHE BANK TRUST COMPANY
AMERICAS have duly executed this Deposit Agreement as of the day and year first
above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of American Depositary Shares evidenced by
Receipts issued in accordance with the terms hereof.
EDP-ENERGIAS DE PORTUGAL, S.A. | |
By:_____________________________________ | |
Name: | |
Title: | |
DEUTSCHE BANK TRUST COMPANY AMERICAS | |
By:_____________________________________ | |
Name: | |
Title: |
31
EXHIBIT
A
[FORM
OF
FACE OF RECEIPT]
NUMBER
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
of
EDP-Energias
de Portugal, S.A.
(A
corporation organized under the laws of the Republic of Portugal
-Company
Number ______________)
DEUTSCHE
BANK TRUST COMPANY AMERICAS, an indirect wholly owned subsidiary of Deutsche
Bank AG, as depositary (herein called the “Depositary”), hereby certifies that
_________________________ is the owner of _____ American Depositary Shares,
each
representing deposited ordinary shares, nominal value Euro 1.00 each, including
evidence of the right to be registered as the owner of ordinary shares (the
“Shares”) of EDP-Energias de Portugal, S.A., a corporation organized under the
laws of the Republic of Portugal (the “Company”). As of the date of the Deposit
Agreement (hereinafter referred to), each American Depositary Share represents
ten (10) Shares deposited under the Deposit Agreement with the Custodian which
at the date of execution of the Deposit Agreement is BNP Paribas Securities
Services (the “Custodian”). The ratio of Depositary Shares to shares of stock is
subject to subsequent amendment as provided in Article IV of the Deposit
Agreement. The Depositary's principal executive office is located at 60 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
(1)
The
Deposit Agreement.
This
American Depositary Receipt is one of an issue of American Depositary Receipts
(“Receipts”), executed and delivered pursuant to the Amended and Restated
Deposit Agreement, dated as of , 2006 (as amended from time to time, the
“Deposit Agreement”), by and among the Company, the Depositary and all Holders
and Beneficial Owners of Receipts from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights and obligations of Holders and Beneficial Owners 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, collectively, “Deposited Securities”). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and the
Custodian.
1
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and the Articles of Association of the
Company and are qualified by and subject to the detailed provisions of the
Deposit Agreement, 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.
(2)
Surrender
of Receipts and Withdrawal of Deposited Securities.
Upon
surrender, at the Principal Office of the Depositary, of this Receipt and upon
payment of (i) the charges of the Depositary for the making of withdrawals
and
cancellation of Receipts (as set forth in Article (10) hereof and Section 5.09
and Exhibit B of the Deposit Agreement) and (ii) all applicable taxes and
governmental charges payable in connection with such surrender and withdrawal,
and, subject to the terms and conditions of the Deposit Agreement, the Company's
Articles of Association, Article (23) of this Receipt and the provisions of
or
governing the Deposited Securities and other applicable laws, the Holder hereof
is entitled in the name of the Holder, or in a name specified by the Holder,
to
register with the Share Registrar the Shares underlying such Receipts, and
will
be entitled to the delivery to the Holder or upon such Holder's order, of the
amount of Deposited Securities at the time represented by the American
Depositary Shares evidenced by this Receipt. Subject to the last sentence of
this paragraph, such Deposited Securities may be delivered in registered form
or
by electronic delivery. Such Deposited Securities may be delivered by (a)
electronic delivery of such Deposited Securities to such Holder or as ordered
by
such Holder through an account with an institution recognized by the Share
Registrar or delivery by other means approved by the Company in accordance
with
Portuguese law and (b) delivery of any other securities, property and cash
to
which such Holder is then entitled in respect of this Receipt.
A
Receipt
surrendered for such purposes shall if so required by the Depositary be properly
endorsed in blank or accompanied by proper instruments of transfer in blank,
and
if the Depositary so requires, the Holder thereof shall execute and deliver
to
the Depositary a written order directing the Depositary to cause the Deposited
Securities being withdrawn to be delivered electronically to or upon the written
order of a person or persons designated in such order through an account with
an
institution recognized by the Share Registrar, or delivery by other means
approved by the Company in accordance with Portuguese law. Thereupon, the
Depositary shall direct the Custodian to deliver, subject to Sections 2.06,
3.01, 3.02, 5.09 and to the other terms and conditions of the Deposit Agreement
and Articles of Association, and to the provisions of or governing the Deposited
Securities and other applicable laws, now or hereafter in effect, evidence
of
the electronic transfer of the Deposited Securities represented by such Receipt
except that the Depositary may make delivery to such person or persons at the
Principal Office of the Depositary of any dividends or distributions with
respect to the Deposited Securities represented by such Receipt, or of any
proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
2
The
Depositary shall not accept for surrender a Receipt evidencing American
Depositary Shares representing less than one Share. In the case of surrender
of
a Receipt evidencing a number of American Depositary Shares representing other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be recorded in the name of the Holder
surrendering such Receipt, and shall deliver to the person surrendering such
Receipt the net cash proceeds from the sale by the Depositary of any remaining
fractional share.
(3)
Transfers,
Split-Ups and Combinations of Receipts.
Subject
to the limitations set forth herein and in the Deposit Agreement, the transfer
of this Receipt is registrable on the books of the Depositary at its Principal
Office by the Holder hereof in person or by duly authorized attorney, upon
surrender of this Receipt at any of the Depositary's designated transfer
offices, properly endorsed for transfer or accompanied by a proper instrument
or
instruments of transfer (including any certifications that the Depositary or
the
Company may require in order to comply with applicable laws, signature
guarantees in accordance with standard industry practice and the accurate
completion of any endorsements appearing on this Receipt) and (i) duly stamped
as may be required by the laws of the State of New York and the United States
of
America, and (ii) accompanied by funds sufficient to pay any applicable stamp,
transfer or other applicable taxes, duties and the charges set forth in Article
(10) hereof, and upon compliance with such regulations, if any, as the
Depositary may establish for such purpose, subject to Article (23) of this
Receipt. This Receipt may be split into other such Receipts, or may be combined
with other such Receipts into one Receipt for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
(4)
Pre-Conditions
to Registration, Transfer, Etc.
As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, and subject to Article 23 of this Receipt, the Depositary, the
Custodian or the Share Registrar may require (i) payment from the presenter
of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any share transfer or registration fee with respect
thereto (including any such tax, duty, charge, fee and expense with respect
to
Shares being deposited or Deposited Securities being withdrawn) and payment
of
any applicable fees payable by Holders as provided in this Receipt, (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any
signature or other matters, subject to Article (23) of this Receipt, and (iii)
compliance with (a) any applicable laws or governmental regulations relating
to
American Depositary Receipts or to the withdrawal of Deposited Securities and
(b) such reasonable regulations, if any, as the Depositary and the Company
may
establish consistent with the provisions of the Deposit Agreement.
3
After
consultation with the Company, the delivery of Receipts against deposits of
Shares generally or against deposits of particular Shares may be suspended,
or
the delivery of Receipts against the deposit of particular Shares may be
withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfer of Receipts generally may be
suspended or the surrender of outstanding Receipts for the purpose of withdrawal
of Deposited Securities may be suspended, during any period when the transfer
books of the Company, the Depositary 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, any government or governmental body or commission or any
securities exchange on which the Receipts or Shares are listed, or under any
provision of the Deposit Agreement or provisions of or governing Deposited
Securities, or any meeting of shareholders of the Company or for any other
reason, subject in all cases to Article (23) hereof. Notwithstanding any other
provision of the Deposit Agreement, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may not be suspended except as required
in
General Instructions I.A.(l) to Form F-6 (as such instructions may be amended
from time to time) under the Securities Act of 1933 in connection with (i)
temporary delays caused by closing the transfer books of the Depositary, the
Company or the Share Registrar or relating to 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, and (iii) compliance
with
any governmental regulations relating to the Receipts or to the withdrawal
of
the Deposited Securities. Without limitation of the foregoing, the Depositary
shall not, and it shall instruct the Custodian not to, knowingly accept for
deposit under the Deposit Agreement any Shares or other Deposited Securities
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares or her Deposited
Securities or any Shares or Deposited Securities the deposit of which would
violate any provisions of the Company's Articles of Association.
4
Dated: | DEUTSCHE BANK TRUST COMPANY | |
AMERICAS,
|
||
as
Depositary
|
Countersigned
By: ____________________ | By: ____________________ | |
Authorized
Officer
|
Vice
President
|
|
The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
5
[FORM
OF
REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(5) Compliance
With Information Requests.
Notwithstanding any other provision of the Deposit Agreement, the Company may
from time to time request Holders or former Holders to provide information
as to
the capacity in which they hold or held Receipts and regarding the identity
of
any other persons then or previously interested in such Receipts and the nature
of such interest and various other matters. Each Holder agrees to provide any
such information reasonably requested by the Company or the Depositary pursuant
to this Section, whether or not they are Holders at the time of such request.
The Depositary agrees to use reasonable efforts to comply with written
instructions received from the Company requesting the Depositary to forward
any
such requests to the Holders and to forward to the Company any such responses
to
such requests received by the Depositary.
(6) Ownership
Restrictions.
The
Company may restrict transfers of the Shares where such transfer might result
in
ownership of Shares exceeding limits under 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 American Depositary Shares where such
transfer may result in the total number of Shares represented by the American
Depositary Shares owned by a single Holder to exceed the limits under any
applicable law. The Company may, in its sole discretion, instruct the Depositary
to take action with respect to the ownership interest of any Holder in excess
of
the limitation set forth in the preceding sentence, including but not limited
to
a mandatory sale or disposition on behalf of a Holder of the Shares represented
by the American Depositary Shares held by such Holder 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.
(7)
Liability
of Holder for Taxes, Duties and Other Charges.
If any
tax or other governmental charge shall become payable by the Depositary with
respect to any Receipt or any Deposited Securities represented by the American
Depositary Shares evidenced hereby, such tax or other governmental charge shall
be payable by the Holder hereof to the Depositary. The Depositary may refuse
to
effect any registration of transfer of all or part of this Receipt or any
withdrawal of Deposited Securities represented by the American Depositary Shares
evidenced hereby until such payment is made, and the Company and the Depositary
may withhold or deduct from any dividends or other distributions, or may sell
for the account of the Holder hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and
may
apply such dividends or other distributions or the proceeds of any such sale
in
payment of such tax or other governmental charge, with the Holder hereof
remaining liable for any deficiency. The Holder shall indemnify the Depositary,
the Company, the Custodian and any of their respective directors, employees,
agents, and Affiliates against, and hold each of them harmless from, any claims
by any governmental authority with respect to taxes, additions to tax, penalties
or interest arising out of any refund of tax, reduced rate of withholding at
source or other tax benefit obtained for such Holder pursuant to Section 4.15
of
the Deposit Agreement.
6
(8) Representations
and Warranties of Depositors.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares are validly issued and outstanding,
fully
paid and non-assessable, that any preemptive rights have been validly waived
or
exercised and that the person making such deposit is duly authorized to do
so.
Each such person shall be deemed to acknowledge complete responsibility for
the
report of any false information relating to foreign exchange transactions to
the
Depositary, the Custodian or any governmental authority in Portugal in
connection with the issuance of Receipts and the deposit, transfer, surrender
or
withdrawal of Shares or Receipts. Every such person shall be deemed to represent
that the deposit of Shares or sale of Receipts by that person is not restricted,
and such Shares do not constitute Restricted Securities, under the Securities
Act of 1933. Such representations and warranties shall survive any such deposit,
transfer, surrender and withdrawal of Shares and Receipts. 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 reasonably necessary to correct the
consequences thereof.
(9) Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Holder may, in addition to the
requirements of Articles (4) and (5) hereof, be required from time to time
(i)
to file with the Depositary or a Custodian such proof of citizenship or
residence, taxpayer status, exchange control approval, payment of all applicable
taxes or other governmental charges, the identity of any person legally or
beneficially interested in the Receipt and the nature of such interest, (ii)
provide such information relating to the registration on the books of the
Company or the Share Registrar of the Shares presented for deposit, (iii)
establish compliance with all applicable laws, rules and regulations of or
governing the Deposited Securities and the terms of the Deposit Agreement,
and
(iv) execute and deliver to the Depositary or a Custodian such certificates
and
to make such representations and warranties as the Depositary or the Company
may
deem necessary or proper or as the Company reasonably may require by written
request to the Depositary and the Custodian. Subject to Article (23) hereof
and
the terms of the Deposit Agreement, the Depositary may withhold the delivery
or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof, or the
delivery of any Deposited Securities until such proof or other information
is
filed or such certificates are delivered or such representations and warranties
made.
7
(10) Charges
of Depositary.
The
Depositary shall charge any party to whom Receipts are issued (including,
without limitation, deposit or issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock for the Shares or
Deposited Securities, or a distribution of Receipts pursuant to Section 4.03
or
4.11 of the Deposit Agreement), or who surrenders Receipts, a fee of U.S. $5.00
or less, and a fee of U.S. $5.00 or less, in each case, per 100 American
Depositary Shares (or portion thereof) for the issuance or surrender,
respectively, of a Receipt. In addition, Holders will pay the fees of the
Depositary for making a deposit, the execution and delivery of Receipts, making
a withdrawal, the surrender of Receipts and the making of any distribution
pursuant to the Deposit Agreement, all stamp, transfer and other applicable
taxes and other governmental charges, registration fees and facsimile
transmission and delivery expenses, and customary and other expenses incurred
by
the Depositary in connection with its obligations and duties under the Deposit
Agreement, as set forth in Exhibit B thereof. Any other charges and expenses
of
the Depositary under the Deposit Agreement will be paid by the Company after
consultation and agreement between the Depositary and the Company concerning
the
nature and amount of such charges and expenses. All fees and charges may at
any
time and from time to time be changed by agreement between the Company and
the
Depositary. The charges and expenses of the Custodian, nominee or any other
agent of the Depositary are for the sole account of the Depositary. The
provisions in respect of these charges may be changed in the manner indicated
in
Article (21) of this Receipt.
(11) Title
to Receipts.
It is a
condition of this Receipt, and every successive Holder of this Receipt by
accepting or holding the same consents and agrees, that title to this Receipt
(and to each American Depositary Share evidenced hereby), when such Receipt is
properly endorsed or accompanied by a proper instrument or instruments of
transfer, is transferable by delivery with the same effect as in the case of
a
negotiable instrument; provided, however, that the Company and the Depositary,
notwithstanding any notice to the contrary, may deem and treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
any
distribution of dividends or other distributions or to any notice provided
for
in the Deposit Agreement and for all other purposes, and neither the Depositary
nor the Company shall have any obligations or be subject to any liability
hereunder or under the Deposit Agreement to any holder of a Receipt unless
such
holder is a Holder thereof.
(12)
Validity
of Receipt.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or obligatory for any purpose, unless this Receipt has been executed
by
the Depositary by the manual signature of a duly authorized signatory of the
Depositary; provided, however, that such signature may be a facsimile if a
Registrar has been appointed and this Receipt has been countersigned by the
manual signature of a duly authorized officer of the Registrar; and provided,
further, that, only with respect to the Receipts originally issued, the
signatures of both the Depositary and the Registrar may be
facsimiles.
8
(13)
Reports;
Inspection of Transfer Books.
The
Company will either be subject to the reporting requirements of the Exchange
Act
as such requirements apply to foreign private issuers, and accordingly, file
certain reports with the Commission or exempt therefrom by reason of the
exemption available under Rule 12g3-2(b) promulgated thereunder. Any reports
or
other submissions made to the Commission will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at the date hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The
Depositary will make available for inspection by Holders at its Principal Office
and at the office of each Custodian, copies of the Deposit Agreement, any
notices, reports or communications, including any proxy soliciting material,
received from the Company which are both (a) received by the Depositary, a
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. In accordance with the Securities Exchange Act of
1934, as amended, such reports and communications shall be in English. The
Depositary will also send to Holders copies of such reports when furnished
by
the Company pursuant to Section 5.06 of the Deposit Agreement.
The
Registrar will keep books for the registration of Receipts and transfers of
Receipts which at all reasonable times shall be open for inspection by Holders,
provided that such inspection shall not be for the purpose of communicating
with
Holders in the interest of a business or object other than the business of
the
Company or a matter related to the Deposit Agreement or the
Receipts.
Subject
to Article (23) hereof, the Registrar may close the transfer books (with notice
to the Company if other than in the ordinary course of business), 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.
(14)
Dividends
and Distributions in Cash, Shares, etc.
Whenever the Depositary or any Custodian receives any cash dividend or other
cash distribution on any Deposited Securities, the Depositary will, if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary, pursuant to Section 4.08 of the Deposit Agreement,
be converted on a practicable basis, by sale or any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States, and subject to the Deposit Agreement, promptly convert or cause
to be converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by,
the
Depositary) to the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively without liability for interest thereon. 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 distributable
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 Receipts then outstanding. Pursuant to Articles
(4)
and (7) hereof, if the Company 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 American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded to the relevant
governmental authority by the person holding the withheld amounts.
9
If
any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of Shares, the Company shall deposit or cause such Shares to be
deposited with and registered with the Share Registrar in the name of the
Custodian and thereupon the Depositary may, with the Company's approval and
shall, if the Company so requests, subject to Section 5.07 of the Deposit
Agreement, either (i) distribute to the Holders entitled thereto, as of the
record date fixed pursuant to Section 4.09 of the Deposit Agreement, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for American
Depositary Shares, which represent in aggregate the number of Shares received
as
such dividend or free distribution, subject to the terms of this Deposit
Agreement, including, without limitation, Sections 2.02, 2.03, 5.07 and 5.09
of
the Deposit Agreement; in lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the number of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.02 of the Deposit Agreement, or (ii) if additional Receipts are not so
distributed (except pursuant to (i) above), each American Depositary Share
shall
thenceforth also represent pro rata the additional Shares distributed upon
the
Deposited Securities represented thereby. 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, or, if after the Company, in the
fulfillment of its obligations under Section 5.07 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,
or
if the Company does not provide a satisfactory opinion as provided in Section
5.07, the Depositary may adopt such method as the Depositary may deem equitable
and practicable (after consultation with the Company) for the purpose of
effecting such distribution, including the disposal 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, or effect the
distribution of unregistered Shares, and the Depositary shall distribute the
net
proceeds of any such sale after deduction of such taxes or charges to Holders
entitled thereto in proportion to the number of American Depositary Shares
held
by them respectively and the Depositary shall distribute any unsold balance
of
such property in accordance with the provisions of this Deposit
Agreement.
10
In
the
event that the Company shall offer or cause to be offered to the holders of
any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any other nature, the Depositary will, after consultation with the Company,
either (a) make such rights available to the Holders, (b) dispose of such rights
for the benefit of the Holders and make the net proceeds available in Dollars
to
the Holders or (c) allow such rights to lapse in the event such rights may
not
be made available to the Holders or may not be disposed of for the benefit
of
the Holders; provided, however, that the Depositary will, if requested by the
Company in writing, take action as follows:
(a)
if at the time of the offering of any rights, the Depositary in its
discretion, after the Company has obtained opinion(s) of counsel reasonably
satisfactory to the Depositary, that it is lawful and feasible to make such
rights available to all or certain Holders but not to others, by means of
warrants or otherwise, the Depositary will distribute warrants or other
instruments therefor in such form as it may determine, to the Holders entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, or employ such other method
as it may deem feasible after the Company has obtained opinion(s) of counsel
reasonably satisfactory to the Depositary in order to facilitate the exercise,
sale or transfer of rights or the securities obtainable upon the exercise of
such rights, by such Holders; or
(b)
if at the time of the offering of any rights, the Depositary determines
after the Company has obtained opinion(s) of counsel reasonably satisfactory
to
the Depositary, that it is not lawful or not feasible to make such rights
available to certain Holders by means of warrants or otherwise, or if the rights
represented by such rights, warrants or such other instruments are not exercised
and appear to be about to lapse, the Depositary shall use its reasonable efforts
to sell the rights, warrants or other instruments at public or private sale,
in
a riskless principal capacity, at such place or places and upon such terms
as it
may deem proper, and allocate the proceeds of such sales for the account of
the
Holders otherwise entitled to such rights, warrants or other instruments upon
an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions or the date of delivery of any
Receipt or Receipts, or otherwise, and distribute such net proceeds so allocated
to the extent practicable as in the case of a distribution of cash pursuant
to
Section 4.02 of the Deposit Agreement. Neither the Company nor the Depositary
shall be responsible for (i) any failure of the Depositary to determine that
it
may be lawful or feasible to make such rights available to Holders in general
or
any Holder or Holders in particular, (ii) any foreign exchange exposure or
loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such rights, warrants or other instruments.
11
If
the
Depositary does not receive such written request from the Company, the
Depositary shall, after consultation with the Company, and after obtaining
opinion(s) of counsel reasonably satisfactory to the Depositary, have discretion
as to the procedure to be followed (i) in making such rights available to the
Holders, or (ii) in disposing of such rights on behalf of such Holders and
distributing the net proceeds available in dollars to such Holders as in the
case of a distribution of cash pursuant to Section 4.02 of the Deposit
Agreement, or (iii) in allowing such rights to lapse in the event such rights
may not be made available to Holders or be disposed of and the net proceeds
thereof made available to Holders.
Notwithstanding
anything to the contrary in this Article (14), 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 offer such rights to the Holders (i) unless
and until a registration statement under the Securities Act 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,
satisfactory to the Depositary or other evidence satisfactory to the Depositary
to the effect that the offering and sale of such securities to the Holders
of
such Receipts are exempt from or do not require registration under the
provisions of the Securities Act or any other applicable laws, provided,
however, that nothing in this Deposit Agreement shall create, or be construed
to
create, any obligation on the part of the Company to file a registration
statement or to endeavor to have such a registration statement declared
effective.
Whenever
the Custodian shall receive any distribution other than cash, Shares or rights
in respect of any Deposited Securities, the Depositary shall, after consultation
with the Company, and after the Company has obtained opinion(s) of counsel
reasonably satisfactory to the Depositary that the proposed distribution does
not violate any applicable laws or regulations, cause the securities or property
so received to be distributed to the Holders entitled thereto, as of a record
date fixed pursuant to Section 4.09 of the Deposit Agreement, in proportion
to
the number of American Depositary Shares representing such Deposited Securities
held by them respectively, in any manner that the Depositary may deem equitable
and practicable for accomplishing such distribution, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charge; provided, however, that, if in the opinion of the
Depositary or its counsel, it cannot cause such securities or property to be
distributed or such distribution cannot be made proportionately among the
Holders entitled thereto, or if for any other reason (including without
limitation any requirement (i) that the Company, the Depositary or the Custodian
withhold an amount on account of taxes or other governmental charges or (ii)
that under applicable securities or exchange control regulations or law such
securities must be registered under the Securities Act or other law in order
to
be distributed to Holders), the Depositary deems such distribution not to be
feasible, the Depositary shall after consultation with the Company to the extent
practicable, adopt such method as it may deem equitable and practicable for
the
purpose of effecting such distribution and may rely on such advice, which method
may include, but not be limited to, the sale (at public or private sale) of
the
securities or property thus received, or any part thereof, and the distribution
of the net proceeds of any such sale (net of taxes, fees and expenses of the
Depositary set forth in Section 5.09 or in Exhibit B of the Deposit Agreement)
by the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash, provided that any unsold balance of such
securities or property shall be distributed by the Depositary to the Holders
entitled thereto, if such distribution is feasible without withholding for
or an
account of any taxes or other governmental charges and without registration
under the Securities Act, in accordance with such equitable and practicable
method as the Depositary may have adopted.
12
Pursuant
to Articles (4) and (7) hereof, if the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor)
is
subject to any tax, duty 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, duties or governmental charges,
and the Depositary shall distribute the net proceeds of any such sale after
deduction of such taxes, duties or governmental charges to Holders entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively and shall distribute any unsold balance of such property in
accordance with the provisions of the Deposit Agreement.
The
Custodian, the Depositary or the Company or its agents shall use reasonable
efforts to make and maintain arrangements enabling Holders who are citizens
or
residents of the United States to receive any rebates, tax and/or duty credits
or other benefits (pursuant to treaty or otherwise) relating to dividend
payments on the American Depositary Shares to which they are entitled, and
they
may file any such reports necessary to obtain benefits under applicable tax
treaties for the Holders.
(15)
Fixing
of 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 cash dividend or other cash distribution or any distribution other
than cash, or any rights to be issued with respect to the Deposited Securities,
or whenever for any reason the Depositary causes a change in the number of
Shares that are represented by each American Depositary Share, or whenever
the
Depositary shall receive notice of any meeting 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, after consultation with
the
Company, fix a record date as close as practicable to the record date fixed
by
the Company in respect of the Shares for the determination of the Holders of
Receipts who shall be entitled to receive such dividend, distribution rights
or
the net proceeds of the sale thereof, to give instructions for the exercise
of
voting rights at any such meeting, or to give or withhold such consent, or
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 American Depositary Share. Subject to the provisions of Sections 4.02
through 4.08 of the Deposit Agreement and to the other terms and conditions
of
this Receipt and the Deposit Agreement, the Holders of Receipts at the close
of
business on such record date shall be entitled to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion
to
the number of American Depositary Shares held by them respectively, or to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
13
(16) Voting
of Deposited Securities.
As soon
as practicable after receipt of notice of any meeting at which the holders
of
Shares are entitled to vote or of solicitation of consents or proxies from
holders of Shares or other Deposited Securities, the Depositary will, to the
extent permitted by law, (and provided such written notice is received by the
Depositary at least 30 days prior to the date of such meeting) mail or cause
to
be mailed a notice containing (i) such information as is provided to the
Depositary by the Company, (ii) a statement in English, in a form provided
by
the Company, that the Holders of record at the close of business on a specified
record date will be entitled, subject to the terms of the Deposit Agreement,
any
applicable provisions of Portuguese law, the Articles of Association of the
Company and the provisions of or governing Deposited Securities (which
provisions, if any, shall have been summarized in pertinent part by the
Company), to instruct the Depositary as to the exercise of the voting rights
pertaining to the number of Deposited Securities represented by their respective
ADSs and (iii) a statement addressing the manner in which such instructions
may
be given, including an indication that instructions may be given (or may be
deemed to have been given in accordance with the next paragraph if no
instructions are received prior to the deadline set for such purposes) to the
Depositary to give a discretionary proxy to a person designated by the Company.
In the event notice of the meeting and the request of the Company are not
received by the Depositary at least 30 days prior to the meeting, the Depositary
shall be under an obligation to notify the Holders and shall be under no
obligation to vote or cause to be voted the Deposited Securities. A Holder
of
Receipts will only be entitled to exercise the voting rights, if any, pertaining
to the Shares or other Deposited Securities represented by its respective ADSs.
Holders on the close of business on the record date specified by the Depositary
shall be entitled, subject to any applicable provisions of law and the Company's
Articles of Association, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by their respective ADSs. The Depositary shall endeavor, insofar
as
practicable to vote or cause to be voted the Shares so represented in accordance
with any written instructions of such Holder, including by aggregating, insofar
as practicable, in blocks of 100 ADSs of various Holders who have instructed
the
Depositary in identical manner as to the exercise of rights with respect to
any
matter to be voted upon.
14
Neither
the Custodian nor the Depositary shall vote the Shares or other Deposited
Securities represented by the ADSs other than in accordance with instructions
from the Holder and as described in the following paragraph. If the Depositary
does not receive instructions from a Holder on or before the record date
specified by the Depositary, under certain circumstances such Holder shall
be
deemed to have instructed the Depositary to give a discretionary proxy to the
person designated by the Company to vote the Shares or other Deposited
Securities.
Pursuant
to the Company's Articles of Association, with the exception of the Portuguese
Republic and equivalent entities, no person may exercise more than 5% of
outstanding voting rights of the Company. [Pursuant to Portuguese law, no person
may acquire more than 10% of the Shares (either directly or in the form of
ADSs)
without the prior approval of the Ministry of Finance.] Holders of ADSs will
be
treated as holders of the Shares represented by the ADSs for the purposes of
determining the applicability of the foregoing limitations.
(17) Changes
Affecting Deposited Securities.
Upon
any change in nominal or par value, split-up, cancellation, consolidation or
any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement
or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval,
and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory
to
the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as in the case
of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited shares, with necessary modifications to the form of Receipt
contained in this Exhibit A to the Deposit Agreement, specifically describing
such new Deposited Securities or corporate change. The Company agrees to,
jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, and
with
the Company's approval, 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 shall allocate the net proceeds of such sales 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 4.02 of the Deposit
Agreement. Neither the Company nor the Depositary shall not be responsible
for
(i) any failure by the Depositary to determine that it may be lawful or feasible
to make such securities available to Holders in general or any Holder or Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such
securities.
15
(18) Indemnification.
The
Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, employees, agents and Affiliates against, and hold each
of
them harmless from, any loss, liability, tax, charge or expense of any kind
whatsoever (including, but not limited to, the reasonable fees and expenses
of
counsel) that may arise (a) out of or in connection with any offer, issuance,
sale, resale, transfer, deposit or withdrawal of Receipts, American Depositary
Shares, the Shares or other Deposited Securities by the Company or any Affiliate
of the Company or any offering circular or registration statement under the
Securities Act (whether or not declared effective) in respect thereof, except
to
the extent such loss, liability, tax, charge or expense (including reasonable
fees and expenses of counsel) arises out of information (or omissions from
such
information) relating to the Depositary, furnished to the Company by the
Depositary for use in any offering documents in respect thereof or (b) out
of
acts performed or omitted, in connection with the Deposit Agreement and the
Receipts including but not limited to any delivery by the Depositary on behalf
of the Company of information regarding the Company, in connection with the
Deposit Agreement, the Receipts, the American Depositary Shares, the Shares
or
any Deposited Securities, as the same may be amended, modified or supplemented
from time to time, in any such case (i) by the Depositary, the Custodian or
any
of their respective directors, employees, agents and Affiliates, except to
the
extent such loss, liability, tax, charge or expense is due to negligence or
bad
faith of any of them, or (ii) by the Company or any of its directors, employees,
agents and Affiliates.
The
indemnities contained in the preceding paragraph shall not extend to any
liability or expense which may arise out of any Pre-Release Transaction (as
defined in Article (24) hereof and Section 5.10 of the Deposit Agreement) other
than a Pre-Release Transaction entered into at the request of the
Company.
16
The
Depositary agrees to indemnify the Company and its directors, employees, agents
and Affiliates and hold each of them harmless from any loss, liability, charge
or expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary in any such case or any of its directors, employees or
Affiliates, including, but not limited to, any delivery by the Company on behalf
of the Depositary of information regarding the Depositary in connection with
the
Deposit Agreement, the Receipts, the American Depositary Shares, the Shares
or
any Deposited Securities, as the same may be amended, modified, or supplemented
from time to time, due to the negligence or bad faith of the Depositary, and
of
any of its directors, employees, agents or Affiliates.
The
obligations set forth in this Article (18) shall survive the termination of
the
Deposit Agreement and the succession or substitution of any party
hereto.
Any
person seeking indemnification hereunder (an “indemnified person”) shall notify
the person from whom it is seeking indemnification (the “indemnifying person”)
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such indemnified person's rights
otherwise than under this Article (18) and Section 5.08 of the Deposit
Agreement) and shall consult in good faith with the indemnifying person as
to
the conduct of the defense of such action or claim, which defense shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any action or claim without the consent of the indemnifying person,
which
consent shall not be unreasonably withheld.
(19) Liability
of the Company and the Depositary.
Neither
the Depositary nor the Company nor any of their respective controlling persons,
directors, employees, agents or affiliates shall incur any liability to any
Holder or other person if, by reason of any present or future law, the Articles
of Association of the Company, the provisions of any Deposited Security, act
of
God, war or other circumstance beyond its control or by reason of any provision
of any securities issued by the Company, or any offering or distribution
thereof, the Depositary, its controlling persons or its agents or the Company,
its controlling persons or its agents shall be prevented, delayed or forbidden
from doing or performing any act or thing which by the terms of the Deposit
Agreement it is provided shall or may be done or performed, or by reason of
any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement or obligated to do or perform any act which obligation is inconsistent
with the obligations of the Deposit Agreement. Each of the Depositary, its
controlling persons and its agents, the Company, its controlling persons and
its
agents assumes no obligation and shall be subject to no liability under the
Deposit Agreement or this Receipt to Holders or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to perform
in the Deposit Agreement without negligence or bad faith and using its
reasonable judgment. The Depositary and the Company undertake to perform such
duties and only such duties as are specifically set forth in the Deposit
Agreement, and no implied covenants or obligations will be read into the Deposit
Agreement against the Depositary or the Company or their respective agents.
None
of the Depositary, its controlling persons or its agents nor the Company its
controlling persons or its agents will be (a) under any obligation to appear
in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this Receipt that in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it in its sole discretion
against all expense and liability be furnished as often as may be required
or
(b) liable for any action or inaction by it or them in reliance upon the advice
of or information from legal counsel, accountants, any person presenting Shares
for deposit, any Holder or any other person believed by it or them in good
faith
to be competent to give such advice or information. The Depositary, its
controlling persons and its agents and the Company, its controlling persons
and
its agents may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them in good faith to be
genuine and to have been signed or presented by the proper party or parties.
Subject to the provisions of this paragraph (19), the Depositary and its agents
will not be liable for any failure to carry out any instructions to vote any
of
the Deposited Securities, for the manner in which any such vote is cast or
for
the effect of any such vote. The Depositary may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
17
(20) 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 its election so to do delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company, or (ii) upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement.
The
Depositary may at any time be removed by the Company by written notice of such
removal which notice shall be effective on the earlier of (i) the 60th day
after
delivery thereof to the Depositary, 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
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, shall become fully vested with
all
the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, 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, (ii)
duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of
the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
18
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.
(21)
Amendment,
Supplement.
The
form of the Receipts in respect of the Shares 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 consent of the Holders. Any
amendment or supplement which shall impose or increase any fees or charges
(other than taxes and other governmental charges), or which shall otherwise
prejudice any substantial existing right of Holders or Beneficial Owners, shall
not, however, become effective as to outstanding Receipts until the expiration
of 30 days after notice of such amendment or supplement shall have been given
to
the Holders of outstanding Receipts. The parties hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by
the
Company and the Depositary) in order for (a) the American Depositary Shares
to
be registered on Form F-6 under the Securities Act or (b) the American
Depositary Shares or Shares to be traded solely in electronic book-entry form
and (ii) do not in either such case impose or increase any fees or charges
to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders 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 Receipt, to consent and agree to such amendment or supplement and
to
be bound by the Deposit Agreement as amended or supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable
law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement the Deposit Agreement and the Receipt at any time in
accordance with such changed rules. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance.
19
(22) Termination.
The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by mailing notice of such termination to the Holders
of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. If 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 Article (20) hereof and Section 5.04 of the Deposit Agreement,
the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Article
(2) hereof and Section 2.05 of the Deposit Agreement and subject to the
conditions and restrictions therein set forth, and upon payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that
the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.05 of the Deposit Agreement,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as
the
case may be, in each case the charges of the Depositary for the surrender of
a
Receipt, any expenses for the account of the Holder in accordance with the
terms
and conditions of the Deposit Agreement and applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from
the
date of termination of the Deposit Agreement, the Depositary may and intends
to
sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash
then
held by it hereunder, in an unsegregated escrow account, without liability
for
interest for the pro rata benefit of the Holders of Receipts whose Receipts
have
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement with respect
to
the Receipts and the Shares, Deposited Securities and American Depositary
Shares, except for its obligations to the Company under Article (18) hereof
and
Section 5.08 of the Deposit Agreement and except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be,
in
each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement as to
Receipts, the Company shall be discharged from all obligations under the Deposit
Agreement as to the Receipts and the Shares, Deposited Securities and American
Depositary Shares except for its obligations to the Depositary under Articles
(10) and (18) hereof, and Sections 5.08 and 5.09 of the Deposit
Agreement.
20
(23) Compliance
with U.S. Securities Laws.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to
the
contrary, the Company and the Depositary have each agreed that it will not
exercise any rights it has under the Deposit Agreement or this Receipt to
prevent the withdrawal or delivery of Deposited Securities in a manner which
would violate the United States securities laws, including, but not limited
to,
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act of 1933.
(24)
Certain
Rights of the Depositary; Limitations.
Subject
to the further terms and provisions of this Article (24), the Depositary and
its
agents, on their own behalf, may own and deal in any class of securities of
the
Company and any Affiliate of the Company and in Receipts. The Depositary may
issue Receipts against evidence of rights be registered with the Share Registrar
as the owner of Shares. Such evidence of rights shall consist of written blanket
or specific guarantees of rights to be registered with the Share Registrar
as
the owner of Shares furnished on behalf of the holder thereof. In its capacity
as Depositary, the Depositary shall not lend Shares or Receipts; provided,
however, that the Depositary may issue Receipts prior to the receipt of Shares
pursuant to Section 2.02 of the Deposit Agreement (a “Pre-Release Transaction”)
and deliver Shares upon the receipt and cancellation of Receipts which were
issued in a Pre-Release Transaction but for which Shares may not have been
received. The Depositary may receive Receipts in lieu of Shares in satisfaction
of a Pre-Release Transaction. Each such Pre-Release Transaction will be (a)
accompanied by or subject to a written agreement whereby the person or entity
(the “Applicant”) to whom Receipts are to be delivered (i) represents that at
the time of the Pre-Release Transaction the Applicant or its customer owns
the
Shares or Receipts that are to be delivered in connection with such Pre-Release
Transaction, (ii) agrees to indicate the Depositary as owner of such Shares
or
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or
a
Custodian, (iii) unconditionally guarantees to deliver to the Depositary or
a
Custodian, as applicable, such Shares or Receipts and (iv) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, United States 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 Receipts
and
Shares involved in Pre-Release Transactions at any one time to thirty percent
(30%) of the number of Receipts then issued by the Depositary and in respect
of
which shares are deposited with the Depositary or a Custodian, provided,
however, that the Depositary may 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 Receipts and Shares involved in Pre-Release Transactions with
any
one person on a case by case basis as it deems appropriate. The Depositary
will
terminate all Pre-Release Transactions and enter no new Pre-Release Transactions
to the extent requested by the Company. The Depositary may retain for its own
account any compensation received by it in connection with the foregoing
(including, without limitation, earnings on the collateral provided pursuant
to
(b) above). Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be for the benefit of the Holders (other than the
Applicant).
21
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR
VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s)
unto
______________________ whose taxpayer identification number is
_____________________ and whose address including postal zip code is
___________________________, the within Receipt and all rights and interests
represented thereby, and hereby irrevocably constitutes and
appoints_______________________ attorney-in-fact to transfer said Receipt on
the
books of the Depositary, with full power of substitution in the
premises.
Dated: | Name: | |
By: | ||
Title: | ||
NOTICE:
The signature of the Holder to this assignment
must
correspond with the name as written upon the face of
the
within instrument in every particular, without alteration
or
enlargement or any change whatsoever.
|
||
If
the endorsement be executed by an attorney, executor,
administrator,
trustee or guardian, the person executing the
endorsement
must give evidence of authority to act in such
capacity,
if not on file with the Depositary, must be
forwarded
with this Receipt
|
||
All
endorsements or assignments of Receipts must be
guaranteed
by a member of a Medallion Signature Program
approved
by the Securities Transfer Association Inc.
|
||
SIGNATURE GUARANTEED | ||
22
EXHIBIT
B
CHARGES
OF THE DEPOSITARY
Service | Rate | By Whom Paid |
(1)
Issuance of Receipt upon
deposit
of Shares (including
deposits
pursuant
to stock
dividends
or any other deposits)
|
Up to $5.00 per 100 American Depositary Shares (or fraction thereof) | Party for whom deposits are made or receiving Receipt |
(2)
Delivery of deposited Shares
or
other Deposited Securities,
property
and cash
against surrender of
Receipts
|
Up
to $5.00 per 100 American
Depositary
Shares (or fraction
thereof)
|
Party
surrendering Receipts
or
making
withdrawal
|
In
addition, Holders will pay (1) the fees of the Depositary for making a deposit,
the execution and delivery of Receipts, making a withdrawal, the surrender
of
Receipts, and the making of any distribution pursuant to the Deposit Agreement;
(2) stamp, transfer and other applicable taxes and other governmental charges;
(3) such registration fees as may from time to time be in effect for the
registration of transfers of Ordinary Shares generally on the Central de Valores
Mobiliarios and applicable to transfers of Ordinary Shares to the name of the
Depositary or its nominee or a Custodian or its nominee or a person who makes
a
withdrawal, on the making of deposits or withdrawals; (4) such facsimile
transmission and delivery expenses as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Ordinary Shares or Holders;
(5) such expenses as are incurred by the Depositary or a Custodian in the
conversion of Foreign Currency pursuant to the Deposit Agreement; and (6) such
fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations) in connection with the delivery
of
Deposited Securities.
The
Company after consultation and agreement between the Depositary and the Company
as to the amount and nature of any other charges, will pay those other charges
of the Depositary and those of any Registrar, if any, plus reasonable
out-of-pocket expenses in accordance with written agreements entered into
between the Depositary and the Company from time to time.
23