COMPANHIA VALE DO RIO DOCE AND JPMORGAN CHASE BANK, As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of February 25, 2002
Xxxxxxx 0
XXXXXXXXX XXXX DO RIO DOCE
AND
JPMORGAN CHASE BANK,
As Depositary
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Dated as of February 25, 2002
TABLE OF CONTENTS
| Page | ||||
PARTIES |
1 | |||
RECITALS |
1 | |||
Section 1. Certain Definitions |
||||
(a) |
ADR Register | 1 | ||
(b) |
ADRs; Direct Registration ADRs | 1 | ||
(c) |
ADS | 1 | ||
(d) |
Custodian | 1 | ||
(e) |
Deliver, execute, issue et al | 1 | ||
(f) |
Delivery Order | 1 | ||
(g) |
Deposited Securities | 1 | ||
(h) |
Direct Registration System | 2 | ||
(i) |
Holder | 2 | ||
(j) |
Pre-released ADR | 2 | ||
(j) |
Securities Act of 1933 | 2 | ||
(k) |
Securities Exchange Act of 1934 | 2 | ||
(l) |
Shares | 2 | ||
(m) |
Transfer Office | 2 | ||
(n) |
Withdrawal Order | 2 |
Section 2. ADR Certificates |
2 | |||
Section 3. Deposit of Shares |
3 | |||
Section 4. Issue of ADRs |
4 | |||
Section 5. Distributions on Deposited Securities |
4 | |||
Section 6. Withdrawal of Deposited Securities |
4 | |||
Section 7. Substitution of ADRs |
5 | |||
Section 8. Cancellation and Destruction of ADRs; Maintenance
Of Records |
5 | |||
Section 9. The Custodian |
5 | |||
Section 10. Co-Registrars and Co-Transfer Agents |
5 | |||
Section 11. Lists of Holders |
6 | |||
Section 12. Depositary’s Agents |
6 | |||
Section 13. Successor Depositary |
6 | |||
Section 14. Reports |
7 | |||
Section 15. Additional Shares |
7 | |||
Section 16. Indemnification |
7 | |||
Section 17. Notices |
8 | |||
Section 18. Miscellaneous |
8 | |||
TESTIMONIUM |
10 | |||
SIGNATURES |
10 |
- i -
| Page | |||||
| EXHIBIT A | |||||
FORM OF FACE OF ADR |
A-1 | ||||
Introductory Paragraph |
A-1 | ||||
(1) Issuance of ADRs |
A-2 | ||||
(2) Withdrawal of Deposited Securities |
A-2 | ||||
(3) Transfers of ADRs |
A-3 | ||||
(4) Certain Limitations |
A-4 | ||||
(5) Taxes |
A-4 | ||||
(6) Disclosure of Interests |
A-5 | ||||
(7) Charges of Depositary |
A-5 | ||||
(8) Available Information |
A-7 | ||||
(9) Execution |
A-7 | ||||
Signature of Depositary |
A-7 | ||||
Address of Depositary’s Office |
A-7 | ||||
FORM OF REVERSE OF ADR |
A-8 | ||||
(10) Distributions on Deposited Securities |
A-8 | ||||
(11) Record Dates |
A-9 | ||||
(12) Voting of Deposited Securities |
A-9 | ||||
(13) Changes Affecting Deposited Securities |
A-10 | ||||
(14) Exoneration |
A-11 | ||||
(15) Resignation and Removal of Depositary; the Custodian |
A-12 | ||||
(16) Amendment |
A-12 | ||||
(17) Termination |
A-13 | ||||
- ii -
DEPOSIT AGREEMENT dated as of February 25, 2002 (the “Deposit Agreement”) among COMPANHIA VALE
DO RIO DOCE and its successors (the “Company”), JPMORGAN CHASE BANK, as depositary hereunder (the
“Depositary”), and all holders from time to time of American Depositary Receipts issued hereunder
(“ADRs”) evidencing American Depositary Shares (“ADSs”) representing deposited Shares (defined
below). The parties hereto agree as follows:
1. Certain Definitions.
(a) “ADR Register” is defined in paragraph (3) of the form of ADR.
(b) “ADRs” mean the American Depositary Receipts executed
and delivered hereunder. ADRs may be either in physical
certificated form or Direct Registration ADRs. ADRs in physical
certificated form, and the terms and conditions governing the
Direct Registration ADRs (as hereinafter defined), shall be
substantially in the form of Exhibit A annexed hereto (the “form
of ADR”). The term “Direct Registration ADR” means an ADR, the
ownership of which is recorded on the Direct Registration System.
References to “ADRs” shall include certificated ADRs and Direct
Registration ADRs, unless the context otherwise requires. The
form of ADR is hereby incorporated herein and made a part hereof;
the provisions of the form of ADR shall be binding upon the
parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each
“ADS” evidenced by an ADR represents the right to receive one
Share and a pro rata share in any other Deposited Securities.
(d) “Custodian” means the agent of the Depositary and any
substitute Custodian appointed pursuant to Section 9. Without
the appropriate Brazilian approvals, no more than one Custodian
shall serve hereunder at any given time.
(e) The terms “deliver” , “execute” , “issue” , “register” ,
“surrender”, “transfer” or “cancel”, when used with respect to
Direct Registration ADRs, shall refer to an entry or entries or
an electronic transfer or transfers in the Direct Registration
System.
(f) “Delivery Order” is defined in Section 3.
(g) “Deposited Securities” as of any time means all Shares
at such time deposited under this Deposit Agreement and any and
all other Shares, securities, property and cash at such time held
by the Depositary or the Custodian in respect or in lieu of such
deposited Shares and other Shares, securities, property and cash.
1
(h) “Direct Registration System” means the system for the uncertificated registration
of ownership of securities established by The Depository Trust Company (“DTC”) and utilized by the
Depositary pursuant to which the Depositary may record the ownership of ADRs without the issuance
of a certificate, which ownership shall be evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto. For purposes hereof, the Direct Registration System
shall include access to the Profile Modification System maintained by DTC which provides for
automated transfer of ownership between DTC and the Depositary.
(i) “Holder” means the person or persons in whose name an ADR is registered on the ADR
Register.
(j) “Pre-released ADR” is defined in paragraph (1) of the form of ADR.
(k) “Securities Act of 1933” means the United States Securities Act of 1933, as
from time to time amended.
(l) “Securities Exchange Act of 1934” means the United States Securities Exchange
Act of 1934, as from time to time amended.
(m) “Shares” mean the common shares, without par value, of the Company and shall
include the rights to receive Shares specified in paragraph (1) of the form of ADR.
(n) “Transfer Office” is defined in paragraph (3) of the form of ADR.
(o) “Withdrawal Order” is defined in Section 6.
2. ADR Certificates. (a) ADRs in certificated form shall be engraved, printed or
otherwise reproduced at the discretion of the Depositary in accordance with its customary practices
in its American depositary receipt business, or at the request of the Company typewritten and
photocopied on plain or safety paper, and shall be substantially in the form set forth in the form
of ADR, with such changes as may be required by the Depositary or the Company, in each case after
consultation with the other to the extent practicable, to comply with their obligations hereunder,
any applicable law, regulation or usage or to indicate any special limitations or restrictions to
which any particular ADRs are subject. ADRs may be issued in denominations of any number of ADSs.
ADRs in certificated form shall be executed by the Depositary by the manual or facsimile signature
of a duly authorized officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized officer of the Depositary
shall bind the Depositary, notwithstanding that such officer has ceased to hold such office prior
to the delivery of such ADRs.
2
(b) Direct Registration ADRs. Notwithstanding anything in
this Deposit Agreement or in the form of ADR to the contrary,
ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
(c) Holders shall be bound by the terms and conditions of
this Deposit Agreement and of the form of ADR, regardless of
whether their ADRs are Direct Registration ADRs or certificated
ADRs.
3. Deposit of Shares. In connection with the deposit of Shares hereunder, the
Depositary or the Custodian may require the following in form satisfactory to it: (a) a written
order directing the Depositary to issue to, or upon the written order of, the person or persons
designated in such order a Direct Registration ADR or ADRs evidencing the number of ADSs
representing such deposited Shares (a “Delivery Order”); (b) proper endorsements or duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments assigning to the
Custodian or its nominee any distribution on or in respect of such deposited Shares or indemnity
therefor; and (d) proxies entitling the Custodian to vote such deposited Shares. As soon as
practicable after the Custodian receives Deposited Securities pursuant to any such deposit or
pursuant to paragraph (10) or (13) of the form of ADR, the Custodian shall present such Deposited
Securities for registration of transfer into the name of the Custodian or its nominee, to the
extent such registration is practicable, at the cost and expense of the person making such deposit
(or for whose benefit such deposit is made) and shall obtain evidence satisfactory to it of such
registration. Deposited Securities shall be held by the Custodian for the account and to the order
of the Depositary at such place or places and in such manner as the Depositary shall determine.
Deposited Securities may be delivered by the Custodian to any person only under the circumstances
expressly contemplated in this Deposit Agreement. To the extent that the provisions of or governing
the Shares make delivery of certificates therefor impracticable, Shares may be deposited hereunder
by such delivery thereof as the Depositary or the Custodian may reasonably accept, including,
without limitation, by causing them to be credited to an account maintained by the Custodian for
such purpose with the Company or an accredited intermediary, such as a bank, acting as a registrar
for the Shares, together with delivery of the documents, payments and Delivery Order referred to
herein to the Custodian or the Depositary.
The Depositary and the Custodian shall comply with written instructions from the Company or
its Brazilian counsel to maintain registration of the amount of Deposited Securities with Banco
Central do Brasil (the “Central Bank”) and to furnish to the Central Bank and to the Comissão de
Valores Mobiliários (the “Securities Commission”), whenever required, information or documents
related to this Deposit Agreement, the ADRs and the
3
Deposited Securities and distributions thereon, and may rely, and shall be fully protected in
relying, on such written instructions from the Company or its Brazilian counsel in respect of such
registration, information and documents.
4. Issue of ADRs. After any such deposit of Shares, the
Custodian shall notify the Depositary of such deposit and of the
information contained in any related Delivery Order by letter,
first class airmail postage prepaid, or, at the request, risk and
expense of the person making the deposit, by cable, telex or
facsimile transmission. After receiving such notice from the
Custodian, the Depositary, subject to this Deposit Agreement,
shall properly issue at the Transfer Office, to or upon the order
of any person named in such notice, an ADR or ADRs registered as
requested and evidencing the aggregate ADSs to which such person
is entitled.
5. Distributions on Deposited Securities. To the extent
that the Depositary, after consultation with the Company to the
extent practicable, determines in its discretion that any
distribution pursuant to paragraph (10) of the form of ADR is not
practicable with respect to any Holder, the Depositary may make
such distribution as it so deems practicable, including the
distribution of foreign currency, securities or property (or
appropriate documents evidencing the right to receive foreign
currency, securities or property) or the retention thereof as
Deposited Securities with respect to such Holder’s ADRs (without
liability for interest thereon or the investment thereof).
6. Withdrawal of Deposited Securities. In connection with
any surrender of an ADR for withdrawal of the Deposited
Securities represented by the ADSs evidenced thereby, the
Depositary may require proper endorsement in blank of such ADR
(or duly executed instruments of transfer thereof in blank) and the Holder’s written order
directing the Depositary to cause the Deposited Securities represented by the ADSs evidenced by
such ADR to be withdrawn and delivered to, or upon the written order of, any person designated in
such order (a “Withdrawal Order”). Directions from the Depositary to the Custodian to deliver
Deposited Securities shall be given by letter, first class airmail postage prepaid, or, at the
request, risk and expense of the Holder, by cable, telex or facsimile transmission. Delivery of
Deposited Securities may be made by the delivery of certificates (which, if required by law shall
be properly endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as ordered by such Holder
in any Withdrawal Order) or by such other means as the Depositary may deem practicable, including,
without limitation, by transfer of record ownership thereof to an account designated in the
Withdrawal Order maintained either by the Company or an
4
accredited intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
7. Substitution of ADRs. The Depositary shall execute and
deliver a new Direct Registration ADR in exchange and
substitution for any mutilated certificated ADR upon cancellation
thereof or in lieu of and in substitution for such destroyed,
lost or stolen certificated ADR, unless the Depositary has notice
that such ADR has been acquired by a bona fide purchaser, upon
the Holder thereof filing with the Depositary a request for such
execution and delivery and a sufficient indemnity bond and
satisfying any other reasonable requirements imposed by the
Depositary.
8. Cancellation and Destruction of ADRs; Maintenance of
Records. All ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with
its customary practices.
The Depositary agrees to maintain or cause its agents to maintain records of all ADRs
surrendered and Deposited Securities withdrawn under Section 6 hereof and paragraph (2) of the
form of ADR, substitute ADRs delivered under Section 7 hereof, and canceled or destroyed ADRs
under this Section 8, in keeping with the procedures ordinarily followed by stock transfer
agents located in the City of New York or as required by the laws or regulations governing the
Depositary.
9. The Custodian. The Custodian in acting hereunder shall
be subject to the directions of the Depositary and shall be
responsible solely to it. The Depositary may, after consultation
with the Company to the extent practicable, appoint an agent to
act for it as Custodian hereunder. Such Custodian so appointed
(other than JPMorgan Chase Bank) shall give written notice to the
Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms hereof. Except to
the extent an affiliate of, or an entity recommended by, the
Company acts as a Custodian hereunder, the Depositary shall be
responsible for the compliance by the Custodian with any
applicable provisions of the Deposit Agreement. Without the
appropriate Brazilian approvals, no more than one Custodian shall
serve hereunder at any given time. The Custodian may resign from
its duties hereunder by at least 30 days written notice to the
Depositary. The Depositary may, after consultation with the
Company to the extent practicable, discharge the Custodian at
any time, after consultation with the Company if practicable,
upon notice to the Custodian being discharged. The Custodian
ceasing to act hereunder as Custodian shall deliver, upon the
instruction of the Depositary, all Deposited Securities held by
it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary
may, after consultation with the Company to the extent
5
practicable, appoint and remove (i) co-registrars to register ADRs and transfers,
combinations and split-ups of ADRs and to countersign ADRs in accordance with the terms of
any such appointment and (ii) co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of ADRs at designated transfer offices in addition to the Transfer
Office on behalf of the Depositary. Each co-registrar or co-transfer agent (other than
JPMorgan Chase Bank) shall give notice in writing to the Company and the Depositary accepting
such appointment and agreeing to be bound by the applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to
inspect the records of the Depositary in respect of any transfer
records of the Depositary and its agents and the ADR Register,
take copies thereof and require the Depositary and its agents to
supply copies of such portions of such records as the Company may
request. The Depositary or its agent shall furnish to the
Company promptly upon the written request of the Company, a list
of the names, addresses and holdings of ADSs by all Holders as of
a date within seven days of the Depositary’s receipt of such
request.
12. Depositary’s Agents. The Depositary may perform its
obligations under this Deposit Agreement through any agent
appointed by it, after consultation with the Company to the
extent practicable in the case of an agent which, on the date
hereof, is not acting in an agency capacity for JPMorgan Chase
Bank, provided that the Depositary shall notify the Company of
such appointment and shall remain responsible for the performance
of such obligations as if no agent were appointed.
13. Successor Depositary. If the Depositary acting
hereunder shall resign or be removed, the Company shall use its
best efforts to appoint a bank or trust company having an office
in the Borough of Manhattan. The City of New York, as successor
depositary hereunder. Every successor depositary shall execute
and deliver to its predecessor and to the Company written
acceptance of its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall
become Depositary hereunder; but such predecessor, upon payment
of all sums due it and on the written request of the Company,
shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder and
assigning all interest in the Deposited Securities to such
successor, and shall deliver to such successor a list of the
Holders. Any bank or trust company into or with which the
Depositary may be merged or consolidated, or to which the
Depositary shall transfer substantially all its American
depositary receipt business, shall be the successor of the
Depositary without the execution or filing of any document or any
further act, except as may be required by law. Upon the
appointment of any successor depositary hereunder, any agent of
the Depositary then acting hereunder shall forthwith become such
6
agent hereunder of such successor depositary and such successor depositary shall, on the written
request of any such agent, execute and deliver to such agent any instruments necessary to give such
agent authority as such agent hereunder of such successor depositary.
14. Reports. On or before the first date on which the
Company makes any communication available to holders of Deposited
Securities or any securities regulatory authority or stock
exchange, by publication or otherwise, the Company shall transmit
to the Depositary a copy thereof in English or with an English
translation or summary. The Company has delivered to the
Depositary and the Custodian, a copy of all provisions of or
governing the Shares and any other Deposited Securities issued by
the Company or any affiliate of the Company and, promptly upon
any change thereto, the Company shall deliver to the Depositary
and the Custodian, a copy (in English or with an English
translation) of such provisions as so changed. The Depositary
and its agents may rely upon the Company’s delivery thereof for
all purposes of this Deposit Agreement.
15. Additional Shares. Neither the Company nor any company
controlling, controlled by or under common control with the
Company shall issue additional Shares, rights to subscribe for
Shares, securities convertible into or exchangeable for Shares or
rights to subscribe for any such securities or shall deposit any
Shares under this Deposit Agreement, except under circumstances
which do not violate the Securities Act of 1933. The Depositary
will use reasonable commercial efforts to comply with written
instructions of the Company not to accept for deposit hereunder
any Shares identified in such instructions at such times and
under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company’s compliance with
securities laws in the United States.
16. Indemnification. The Company shall indemnify, defend
and save harmless each of the Depositary and its agents against
any loss, liability or expense (including reasonable fees and
expenses of counsel) which may arise out of acts performed or
omitted, in accordance with the provisions of this Deposit
Agreement and of the ADRs, as the same may be amended, modified
or supplemented from time to time in accordance herewith (i) by
either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except for any
liability or expense arising out of its negligence or bad faith,
or (ii) by the Company or any of its directors, employees, agents
or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any liability or expense
which may arise out of any misstatement or alleged misstatement or omission or alleged omission in
any registration statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or
7
sale of ADSs, except to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other than the Company), as applicable, furnished in
writing by the Depositary and not changed or altered by the Company expressly for use in any of the
foregoing documents or (ii) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading.
The Depositary shall indemnify, defend and save harmless the Company against any loss,
liability or expense (including reasonable fees and expenses of counsel) incurred by the Company in
respect of this Deposit Agreement to the extent such loss, liability or expense is due to the
negligence or bad faith of the Depositary. In no event shall the Depositary or any of its agents be
liable for any indirect, special, punitive or consequential damages.
The obligations set forth in this Section 16 shall survive the termination of this Deposit
Agreement and the succession or substitution of any indemnified person.
17. Notices. Notice to any Holder shall be deemed given
when first mailed, first class postage prepaid, to the address of
such Holder on the ADR Register or received by such Holder.
Notice to the Depositary or the Company shall be deemed given
when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at
such other address or facsimile transmission number as either may
specify to the other by written notice:
| (a) | JPMorgan Chase Bank | ||
| 00 Xxxx Xxxxxx (00xx Xxxxx) | |||
| New York, New York 10260 | |||
| Attention: ADR Administration | |||
| Fax: (000) 000-0000 or 5105 | |||
| (b) | Companhia Vale do Rio Doce | ||
| Xx. Xxxxx Xxxxxx | |||
| 00-00x andar | |||
| 20005-900 Rio de Janeiro | |||
| RJ Brasil | |||
| Attention: | |||
| Fax: |
18. Miscellaneous. This Deposit Agreement is for the
exclusive benefit of the Company, the Depositary, the Holders,
and their respective successors hereunder, and shall not give any
legal or equitable right, remedy or claim whatsoever to any other
person. The Holders and owners of ADRs from time to time shall
be parties to this Deposit Agreement and shall be bound by all of
the provisions hereof. If any such provision is invalid, illegal
or unenforceable in any respect, the remaining provisions shall
in no way be affected thereby. This Deposit Agreement may be
8
executed in any number of counterparts, each of which shall be deemed an original and all of which
shall constitute one instrument.
9
IN WITNESS WHEREOF, COMPANHIA VALE DO RIO DOCE and JPMORGAN CHASE BANK have duly executed this
Deposit Agreement as of the day and year first above set forth and all holders of ADRs shall become
parties hereto upon acceptance by them of ADRs issued in accordance with the terms hereof.
| COMPANHIA VALE DO RIO DOCE | ||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||
| Name: | Xxxxx Xxxxxxx | |||||
| Title: | Chief Executive Officer | |||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||
| Name: | Xxxxxxx Xxxxxxx | |||||
| Title: | Executive Officer | |||||
| JPMORGAN CHASE BANK | ||||||
| By: | /s/ Xxx X. Xxxxxxx | |||||
| Name: | Xxx X. Xxxxxxx | |||||
| Title: | Vice President | |||||
10
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
| No. of ADSs: | ||||
| Each ADS represents | ||||
| One Share | ||||
| CUSIP: |
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
COMMON SHARES, WITHOUT PAR VALUE
of
(Incorporated under the
laws of the Federative Republic of Brazil)
laws of the Federative Republic of Brazil)
JPMORGAN CHASE BANK, a New York corporation, as depositary
hereunder (the “Depositary”), hereby certifies that _________
is the registered owner (a “Holder”) of ______ American Depositary
Shares (“ADSs”), each (subject to paragraph (13)) representing one common share, without par value
(including the rights to receive Shares described in paragraph (1), “Shares” and, together with any
other securities, cash or property from time to time held by the Depositary in respect or in lieu
of deposited Shares, the “Deposited Securities”), of COMPANHIA VALE DO RIO DOCE, a corporation
organized under the laws of Federative Republic of Brazil (the “Company”), deposited under the
Deposit Agreement dated as of February 25, 2002 (as amended from time to time, the “Deposit
Agreement”) among the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder (“ADRs”), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes the provisions set forth on the
reverse hereof) shall be governed by and construed in accordance with the laws of the State of New
York.
A-1
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a) Shares in form
satisfactory to the Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or transactions; or, (c)
unless requested in writing to cease doing so at least two business days prior to the proposed
deposit, other rights to receive Shares (until such Shares are actually deposited pursuant to (a)
or (b) above, “Pre-released ADRs”) only if (i) Pre-released ADRs are fully collateralized (marked
to market daily) with cash or U.S. government securities held by the Depositary for the benefit of
Holders (but such collateral shall not constitute “Deposited Securities”), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a) owns such Shares,
(b) assigns all beneficial right, title and interest therein to the Depositary, (c) holds such
Shares for the account of the Depositary and (d) will deliver such Shares to the Custodian as soon
as practicable and promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 20% of all ADSs (excluding those evidenced by Pre-released ADRs), provided, however,
that the Depositary reserves the right to change or disregard such limit from time to time as it
deems appropriate. The Depositary may retain for its own account any earnings on collateral for
Pre-released ADRs and its charges for issuance thereof. At the request, risk and expense of the
person depositing Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing Shares under the
Deposit Agreement represents and warrants that such Shares are validly issued and outstanding,
fully paid and nonassessable, the pre-emptive rights, if any, with respect to which have been
validly waived or exercised, that the person making such deposit is duly authorized so to do and
that such Shares (A) are not “restricted securities” as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely transferred in accordance
with Rule 144 (k) and may otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and issuance of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities Act of 1933 and not
so registered; the Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company’s compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5) and to the
provisions of or governing Deposited Securities (including the Company’s estatuto social or
applicable law), upon surrender of (i) a certificated ADR in form
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satisfactory to the Depositary at the Transfer Office or (ii) proper instructions and documentation
in the case of a Direct Registration ADR, the Holder hereof is entitled to delivery at the
Custodian’s office of the Deposited Securities at the time represented by the ADSs evidenced by
this ADR. At the request, risk and expense of the Holder hereof, the Depositary may deliver such
Deposited Securities at such other place as may have been requested by the Holder. Notwithstanding
any other provision of the Deposit Agreement or this ADR, the withdrawal of Deposited Securities
may be restricted only for the reasons set forth in General Instruction I.A.(l) of Form F-6 (as
such instructions may be amended from time to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the “Transfer Office”), (a) a
register (the “ADR Register”) for the registration, registration of transfer, combination and
split-up of ADRs, and, in the case of Direct Registration ADRs, shall include the Direct
Registration System, which at all reasonable times will be open for inspection by Holders and the
Company for the purpose of communicating with Holders in the interest of the business of the
Company or a matter relating to the Deposit Agreement and (b) facilities for the delivery and
receipt of ADRs. The term ADR Register includes the Direct Registration System. Title to this ADR
(and to the Deposited Securities represented by the ADSs evidenced hereby), when properly endorsed
in the case of ADRs in certificated form) or upon delivery to the Depositary of proper instruments
of transfer, is transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided that the Depositary,
notwithstanding any notice to the contrary, may treat the person in whose name this ADR is
registered on the ADR Register as the absolute owner hereof for all purposes. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be split into other
ADRs or combined with other ADRs into one ADR, evidencing the same number of ADSs evidenced by this
ADR, by the Holder hereof or by such Holder’s duly authorized attorney upon surrender of this ADR
at the Transfer Office properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer and duly stamped as may be required by
applicable law; provided that the Depositary may close the ADR Register at any time or from
time to time when deemed expedient by it, after making reasonable efforts to consult with the
Company if practicable in the case of any closure outside of the ordinary course of business, or as
reasonably requested by the Company. At the request of a Holder, the Depositary shall, for the
purpose of substituting a certificated ADR with a Direct Registration ADR, or vice versa, execute
and deliver a certificated ADR or a Direct Registration ADR, as the case may be, for any authorized
number of ADSs
A-3
requested, evidencing the same aggregate number of ADSs as those evidenced by the certificated
ADR or Direct Registration ADR, as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration,
registration of transfer, split-up or combination of any ADR, the
delivery of any distribution in respect thereof, or, subject to
the last sentence of paragraph (2), the withdrawal of any
Deposited Securities, and from time to time in the case of clause
(b) (ii) of this paragraph (4) , the Company, the Depositary or the Custodian may require: (a)
payment with respect thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration of transfers of
Shares or other Deposited Securities upon any applicable register and (iii) any applicable charges
as provided in paragraph (7) of this ADR; (b) the production of proof satisfactory to it of (i) the
identity and genuineness of any signature and (ii) such other information, including without
limitation, information as to citizenship, residence, exchange control approval, beneficial
ownership of any securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR, as it may deem
necessary or proper; and (c) compliance with such regulations as the Depositary may establish
consistent with the Deposit Agreement and any regulations which the Depositary is informed of in
writing by the Company which are deemed desirable by the Depositary, the Company or the Custodian
to facilitate compliance with any applicable rules or regulations of the Banco Central do Brasil or
Comissão de Valores Mobiliários. The issuance of ADRs, the acceptance of deposits of Shares, the
registration, registration of transfer, split-up or combination of ADRs or, subject to the last
sentence of paragraph
(2), the withdrawal of Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or when any such action is
deemed advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable by or on
behalf of the Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall be paid by the Holder hereof to the Depositary. The Depositary may
refuse to effect any registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited Securities until
such payment is made. The Depositary may also deduct from any distributions on or in respect of
Deposited Securities, or may sell by public or private sale for the account of the Holder hereof
any part or all of such Deposited Securities (after attempting by reasonable means to notify the
Holder hereof prior to such sale), and may apply such deduction or the proceeds of any such sale in
payment of such tax or other governmental charge, the Holder hereof
A-4
remaining liable for any deficiency, and shall reduce the number of ADSs evidenced hereby to
reflect any such sales of Shares. The Depositary will forward to the Company in a timely fashion
such information from its records as the Company may reasonably request to enable the Company to
file necessary reports with governmental authorities or agencies, and either the Company or the
Depositary may file any such reports necessary to obtain benefits under any applicable tax treaties
for Holders. In connection with any distribution to Holders, the Company will remit to the
appropriate governmental authority or agency all amounts (if any) required to be withheld and owing
to such authority or agency by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required to be withheld and owing
to such authority or agency by the Depositary or the Custodian. If the Depositary determines that
any distribution in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to withhold, the Depositary
may, after consultation with the Company to the extent practicable, dispose of all or a portion of
such property in such amounts and in such manner as the Depositary deems necessary and practicable
to pay such taxes, by public or private sale, and the Depositary shall distribute the net proceeds
of any such sale or the balance of any such property after deduction of such taxes to the Holders
entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or governing any
Deposited Securities (including the Company’s estatuto social or applicable law or the
regulations of the exchange on which Shares may be listed may require disclosure of or impose
limits on beneficial or other ownership of Deposited Securities, Shares and other securities and
may provide for blocking transfer, or the imposition of limitations on voting or other rights to
enforce such disclosure or limits, Holders and Beneficial Owners agree to comply with all such
disclosure requirements and ownership limitations and to cooperate with the Depositary in the
Depositary’s compliance with any Company instructions in respect thereof, and the Depositary will
use reasonable efforts to comply with such Company instructions.
(7) Charges of Depositary. The Depositary may charge each person to whom ADRs are
issued against deposits of Shares, including deposits in respect of Share Distributions, Rights and
Other Distributions (as such terms are defined in paragraph
(10)), and each person surrendering ADRs for withdrawal of Deposited Securities, U.S. $5.00 for
each 100 ADSs (or portion thereof) evidenced by the ADRs delivered or surrendered. The Depositary
may sell (by public or private sale) sufficient securities and property received in respect of
Share
A-5
Distributions, Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party depositing or
withdrawing Shares or by any party surrendering ADRs or to whom ADRs are issued (including, without
limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock regarding the ADRs or the Deposited Securities or a distribution of ADRs pursuant
to paragraph (10)), whichever is applicable (i) to the extent not prohibited by the rules of any
stock exchange or interdealer quotation system upon which the ADSs are traded, a fee of $.02 or
less per ADS (or portion thereof) for any Cash distribution made pursuant to the Deposit Agreement,
(ii) to the extent not prohibited by the rules of any stock exchange or interdealer quotation
system upon which the ADSs are traded, a fee of $1.50 per ADR or ADRs for transfers made pursuant
to paragraph (3) hereof and (iii) a fee for the distribution of securities pursuant to paragraph
(10) hereof, such fee being in an amount equal to the fee for the execution and delivery of ADSs
referred to above which would have been charged as a result of the deposit of such securities (for
purposes of this paragraph (7) treating all such securities as if they were Shares) but which
securities or the net cash proceeds from the sale thereof are instead distributed by the
Depositary to Holders entitled thereto. The Company will pay all other charges and expenses of the
Depositary and any agent of the Depositary (except the Custodian) pursuant to agreements from time
to time between the Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing Shares), (ii) cable, telex
and facsimile transmission and delivery charges incurred at the request of persons depositing, or
Holders delivering Shares, ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration of transfer of Deposited
Securities on any applicable register in connection with the deposit or withdrawal of Deposited
Securities (which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency) and (v) such fees and expenses as
are incurred by the Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any law or regulation
relating to foreign investment) in delivery of Deposited Securities or otherwise in connection with
the Depositary’s or its Custodian’s compliance with applicable law, rule or regulation. These
charges may be changed in the manner indicated in paragraph (16).
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(8) Available Information. The Deposit Agreement, the provisions of or governing
Deposited Securities and any written communications from the Company, which are both received by
the Custodian or its nominee as a holder of Deposited Securities and made generally available to
the holders of Deposited Securities, are available for inspection by Holders at the offices of the
Depositary and the Custodian and at the Transfer Office. The Depositary will mail copies of such
communications (or English translations or summaries thereof) to Holders when furnished by the
Company and will make such communications available by appointment at its offices during business
hours in such manner as the Company may advise as being necessary in order to comply with
applicable law, regulation or stock exchange requirement. The Company is subject to the periodic
reporting requirements of the Securities Exchange Act of 1934 and accordingly files certain reports
with the United States Securities and Exchange Commission
(the “Commission”). Such reports and other information may be inspected and copied at public
reference facilities maintained by the Commission located at the date of the Deposit Agreement at
Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized officer of
the Depositary.
Dated:
| JPMORGAN CHASE BANK, as Depositary | ||||||
| By | ||||||
The Depositary’s office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will, as promptly as practicable after consultation
with the Company to the extent practicable, distribute by mail to each Holder entitled thereto on
the record date set by the Depositary therefor at such Holder’s address shown on the ADR Register,
in proportion to the number of Deposited Securities (on which the following distributions on
Deposited Securities are received by the Custodian) represented by ADSs evidenced by such Holder’s
ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting from a cash dividend or
other cash distribution or the net proceeds of sales of any other distribution or portion thereof
authorized in this paragraph (10) (“Cash”), on an averaged or other practicable basis, subject to
(i) appropriate adjustments for taxes or other governmental charges withheld, (ii) such
distribution being impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary’s expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign currency or U.S.
dollars to the United States by such means as the Depositary may determine to the extent that it
determines that such transfer may be made on a reasonable basis,
(3) obtaining any approval or license of any governmental authority required for such
conversion or transfer, which is obtainable at a reasonable cost and within a reasonable time and
(4) making any sale by public or private means in any commercially reasonable manner. If the
Company shall have advised the Depositary pursuant to the provisions of the Deposit Agreement that
any such conversion, transfer or distribution can be effected only with the approval or license of
the Brazilian government or any agency thereof or the Depositary shall become aware of any other
governmental approval or license required therefor, the Depositary may, in its discretion, apply
for such approval or license, if any, as the Company or its Brazilian counsel may reasonably
instruct in writing or as the Depositary may deem desirable including, without limitation, Central
Bank registration. (b) Shares. (i) To the extent permitted under Brazilian law, additional
ADRs evidencing whole ADSs representing any Shares available to the Depositary resulting from a
dividend or free distribution on Deposited Securities consisting of Shares
(a “Share Distribution”) and (ii) U.S. dollars available to it resulting from the net proceeds of
sales of Shares received in a Share Distribution, which Shares could not be lawfully distributed
hereunder or which would give rise to fractional ADSs if additional ADRs were issued therefor, as
in the case of Cash.
(c) Rights. (i) Warrants or other instruments in the discretion of the Depositary
representing rights to acquire additional ADRs
A-8
in respect of any rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities (“Rights”), to the extent that
the Company timely furnishes to the Depositary evidence satisfactory to the Depositary that the
Depositary may lawfully distribute the same (the Company has no obligation to so furnish such
evidence), or (ii) to the extent the Company does not so furnish such evidence and sales of Rights
are practicable, any U.S. dollars available to the Depositary from the net proceeds of sales of
Rights as in the case of Cash, or (iii) to the extent the Company does not so furnish such evidence
and such sales cannot practicably be accomplished by reason of the nontransferability of the
Rights, limited markets therefor, their short duration or otherwise, nothing (and any Rights may
lapse). (d) Other Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash, Share Distributions and
Rights (“Other Distributions”), by any means that the Depositary may deem equitable and
practicable, or (ii) to the extent the Depositary deems distribution of such securities or property
not to be equitable and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S. dollars available will
be distributed by checks drawn on a bank in the United States for whole dollars and cents (any
fractional cents being withheld without liability for interest and added to future Cash
distributions).
(11) Record Dates. The Depositary may, after consultation with the Company if
practicable, fix a record date (which shall be as near as practicable to any corresponding record
date set by the Company) for the determination of the Holders who shall be entitled to receive any
distribution on or in respect of Deposited Securities, to give instructions for the exercise of any
voting rights, to receive any notice or to act in respect of other matters and only such Holders
shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt from the
Company of notice of any meeting or solicitation of consents or proxies of holders of Shares or
other Deposited Securities, the Depositary shall mail to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials, (b) that each Holder on
the record date set by the Depositary therefor will be entitled to instruct, subject to any
applicable provisions of Brazilian law and the Company’s estatuto social, the Depositary as
to the exercise of the voting rights, if any, pertaining to the Deposited Securities represented by
the ADSs evidenced by such Holder’s ADRs and (c) the manner in which such instructions may be
given, including express instructions to give a discretionary proxy to a person designated by the
Company. Upon receipt of
A-9
instructions of a Holder on such record date in the manner and on or before the date established by
the Depositary for such purpose, the Depositary shall endeavor insofar as practicable and permitted
under the provisions of or governing Deposited Securities to vote or cause to be voted (or to
expressly grant a discretionary proxy to a person designated by the Company to vote) the Deposited
Securities represented by the ADSs evidenced by such Holder’s ADRs in accordance with such
instructions. The Depositary will not itself exercise any voting discretion in respect of any
Deposited Securities.
To the extent such instructions are not so received by the Depositary from any Holder, the
Depositary shall, if requested by the Company by written notice (which notice shall be accompanied
by the opinion mentioned below) deem such Holder to have so instructed the Depositary to give a
discretionary proxy to a person designated by the Company and the Depositary shall endeavor insofar
as practicable and permitted under the provisions of or governing Deposited Securities to give a
discretionary proxy to a person designated by the Company to vote the Deposited Securities
represented by the ADSs evidenced by such Holder’s ADRs as to which such instructions are so given,
provided that no such instruction shall be deemed given and no discretionary proxy shall be
given with respect to any matter as to which the Company informs the Depositary (and the Company
agrees to provide such information promptly in writing) that (x) the Company does not wish such
proxy given, (y) substantial opposition exists or (z) materially affects the rights of holders of
Shares.
Notwithstanding anything to the contrary contained herein, the Depositary shall not be
obligated to give any such deemed instruction unless and until the Depositary has been provided
with an opinion of counsel to the Company, in form and substance satisfactory to the Depositary, to
the effect that (i) the granting of such discretionary proxy does not subject the Depositary to any
reporting obligations in Brazil, (ii) the granting of such proxy will not result in a violation of
Brazilian law, rule, regulation or permit, (iii) the voting arrangement and proxy as contemplated
herein will be given effect under Brazilian law, and (iv) the Depositary will not be deemed to be
authorized to exercise any discretion when voting in accordance with the terms of this paragraph
(12) under Brazilian law and, the Depositary will not be subject to any liability under Brazilian
law for losses arising from the exercise of the voting arrangements set forth in this paragraph
(12).
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and (5), the
Depositary may, in its discretion, amend this ADR or distribute additional or amended ADRs (with or
without calling this ADR for exchange) or cash, securities or property on the record date set by
the Depositary therefor to reflect any change in par value, split-up, consolidation,
A-10
cancellation or other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby authorized to
surrender any Deposited Securities to any person and to sell by public or private sale any property
received in connection with) any recapitalization, reorganization, merger, consolidation,
liquidation, receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a distribution to
Holders to reflect any of the foregoing, or the net proceeds thereof, whatever cash, securities or
property results from any of the foregoing shall constitute Deposited Securities and each ADS
evidenced by this ADR shall automatically represent its pro rata interest in the Deposited
Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of them shall:
(a) incur no liability (i) if any law, rule or regulation of the United States, Brazil or any other
country or jurisdiction or of any other governmental or regulatory authority or stock exchange or
the Company’s estatuto social, the provisions of or governing any Deposited Securities, act
of God, war or other circumstance beyond its control shall prevent, delay or subject to any civil
or criminal penalty any act which the Deposit Agreement or this ADR provides shall be done or
performed by it, or (ii) by reason of any exercise or failure to exercise any discretion given it
in the Deposit Agreement or this ADR; (b) assume no liability except to perform its obligations to
the extent they are specifically set forth in this ADR and the Deposit Agreement without gross
negligence or bad faith; (c) in the case of the Depositary and its agents, be under no obligation
to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder be under no
obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR, which in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be liable for any
action or inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, or any other person believed by
it to be competent to give such advice or information. The Depositary, its agents and the Company
may rely and shall be protected in acting upon any written notice, request, direction or other
document believed by them to be genuine and to have been signed or presented by the proper party or
parties. The Depositary may rely upon instructions from the Company or its Brazilian counsel in
respect of any approval or license of the Brazilian government or any agency thereof required for
any currency conversion, transfer or
A-11
distribution. The Depositary and its agents will not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, for the manner in which any such vote is
cast or for the effect of any such vote. The Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in ADRs. The Company has agreed to
indemnify the Depositary and its agents under certain circumstances and the Depositary has agreed
to indemnify the Company under certain circumstances. In no event shall the Depositary or any of
its agents be liable for any indirect, special, punitive or consequential damages. No disclaimer
of liability under the Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary may resign as
Depositary by written notice of its election to do so delivered to the Company, or be removed as
Depositary by the Company by written notice of such removal delivered to the Depositary; such
resignation or removal shall take effect upon the appointment of and acceptance by a successor
depositary. The Depositary may appoint substitute or additional Custodians and the term
“Custodian” refers to each Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and the
Deposit Agreement may be amended by the
Company and the Depositary at any time without the need to seek the consent of Holders or
Beneficial Owners, provided that any amendment that imposes or increases any fees or
charges (other than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or that shall otherwise prejudice any substantial existing right of Holders, shall
become effective 30 days after notice of such amendment shall have been given to the Holders.
Every Holder of an ADR at the time any amendment to the Deposit Agreement so becomes effective
shall be deemed, by continuing to hold such ADR, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the
right of the Holder of any ADR to surrender such ADR and receive the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of applicable law. The
parties hereto agree that any amendments or supplements which (i) are reasonably necessary (as
agreed by the Company and the Depositary) in order for (a) the ADSs to be registered on Form F-6
under the Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of Holders.
Notwithstanding the foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement or the form of ADR to ensure
compliance
A-12
therewith, the Company and the Depositary may amend or supplement the Deposit Agreement and the ADR
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.
(17) Termination. The Depositary may, and shall at the written direction of the
Company, terminate the Deposit Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such termination. After the
date so fixed for termination, the Depositary and its agents will perform no further acts under the
Deposit Agreement and this ADR, except to receive and hold (or sell) distributions on Deposited
Securities and deliver Deposited Securities being withdrawn. As soon as practicable after the
expiration of six months from the date so fixed for termination, the Depositary shall sell the
Deposited Securities and shall thereafter (as long as it may lawfully do so) hold in a segregated
account the net proceeds of such sales, together with any other cash then held by it under the
Deposit Agreement, without liability for interest, in trust for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale, the Depositary shall be
discharged from all obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination, the Company shall
be discharged from all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents.
A-13
