AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Amended and Restated Deposit Agreement Dated as of September 28, 2006
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of September 28, 2006
TABLE
OF CONTENTS
Page | ||
PARTIES
|
|
1
|
RECITALS
|
1
|
|
Section
1.
|
Certain
Definitions
|
|
(a)
|
ADR
Register
|
1
|
(b)
|
ADRs;
Form of ADR; Direct Registration ADRs
|
1
|
(c)
|
ADS
|
2
|
(d)
|
Custodian
|
2
|
(e)
|
Deliver,
execute, issue et al.
|
2
|
(f)
|
Delivery
Order
|
2
|
(g)
|
Deposited
Securities
|
2
|
(h)
|
Direct
Registration System
|
2
|
(i)
|
Holder
|
2
|
(j)
|
Pre-released
ADR
|
2
|
(k)
|
Securities
Act of 1933
|
2
|
(l)
|
Securities
Exchange Act of 1934
|
2
|
(m)
|
Shares
|
2
|
(n)
|
Special
Damages
|
3
|
(o)
|
Transfer
Office
|
3
|
(p)
|
Withdrawal
Order
|
3
|
Section
2.
|
ADR
Certificates
|
3
|
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
|
6
|
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
|
9
|
Section
19.
|
Amendment
and Restatement of Prior Deposit Agreement
|
9
|
TESTIMONIUM
|
|
|
|
||
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 |
A-3
|
(4)
|
Certain
Limitations
|
A-3
|
(5)
|
Taxes
|
A-4
|
(6)
|
Disclosure
of Interests
|
A-4
|
(7)
|
Charges
of Depositary
|
A-5
|
(8)
|
Available
Information
|
A-5
|
(9)
|
Execution
|
A-6
|
Signature of Depositary |
A-6
|
Address of Depositary's Office |
A-6
|
FORM OF REVERSE OF ADR |
A-7
|
(10)
|
Distributions
on Deposited Securities
|
A-7
|
|
(11)
|
Record
Dates
|
A-8
|
|
(12)
|
Voting
of Deposited Securities
|
A-8
|
(13)
|
Changes
Affecting Deposited Securities
|
A-9
|
|
(14)
|
Exoneration
|
A-9
|
(15) | Resignation and Removal of Depositary; the Custodian |
A-10
|
(16)
|
Amendment
|
A-10
|
(17)
|
Termination
|
A-11
|
-
ii
-
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of
September 28, 2006
(the
"Deposit Agreement") among COMPANHIA VALE DO RIO DOCE and its successors
(the
"Company"), JPMORGAN CHASE BANK, N.A., as depositary hereunder (the "Depositary"),
and all holders from time to time of American Depositary Receipts issued
hereunder
("ADRs") evidencing American Depositary Shares ("ADSs") representing deposited
Shares
(defined below). The Company hereby appoints the Depositary as depositary for
the Deposited
Securities and hereby authorizes and directs the Depositary to act in accordance
with the
terms
set forth in this Deposit Agreement. All capitalized terms used herein have
the
meanings
ascribed to them in Section 1 or elsewhere in this Deposit
Agreement.
WITNESSETH:
WHEREAS,
the Company and the Depositary entered into a deposit agreement dated
as
of January 1, 1994, as amended (as so amended, the "Prior Deposit Agreement")
to
provide
for the deposit of Shares (defined below) of the Company with the Depositary
or
with the Custodian
as agent of the Depositary for the purposes set forth in such Prior Deposit
Agreement, for
the
creation of American depositary shares representing the Shares so deposited
and
for the execution
and delivery of American depositary receipts ("Old ADRs") evidencing the
American depositary
shares;
WHEREAS,
the Company and the Depositary desire to amend certain terms of the Prior
Deposit Agreement in accordance with Section 6.01 of the Prior Deposit Agreement
and to reflect
such amendments pursuant to the terms and conditions set forth in this Amended
and Restated
Deposit Agreement; and
WHEREAS,
it is desired to provide, as hereinafter set forth in this Deposit Agreement,
for the deposit of Shares of the Company from time to time with the Custodian
for the
purposes set forth herein, and for the issuance of ADRs, in respect of the
Shares so deposited.
NOW
THEREFORE, in consideration of the premises, it is agreed by and among
the
parties hereto 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.
1
(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.
(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 preferred class A shares, without par value, of the Company and
shall
include the rights to receive Shares specified in paragraph (1) of the form
of
ADR.
2
(n) "Special
Damages"
is
defined in Section 16.
(o) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(p) "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.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated
ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to issue to, or upon the written order of, the person or persons
designated in such order
a
Direct Registration ADR or ADRs evidencing the number of ADSs representing
such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer
in respect of such deposited Shares; (c) instruments assigning to the Custodian
or its nominee
any distribution on or in respect of such deposited Shares or indemnity
therefor; and (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable
after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to
paragraph (10)
or
(13) of the form of ADR, the Custodian shall present such Deposited Securities
for registration
of transfer into the name of the Custodian or its nominee, to the extent such
registration
is practicable, at the cost and expense of the person making such deposit (or
for whose
benefit such deposit is made) and shall obtain evidence satisfactory to it
of
such registration.
Deposited Securities shall be held by the Custodian for the account and to
the
order of
the
Depositary at such place or places and in such manner as the Depositary shall
determine. Deposited
Securities may be delivered by the Custodian to any person only under the
circumstances
expressly contemplated in this Deposit Agreement. To the extent that the
provisions
of or governing the Shares make delivery of certificates therefor impracticable,
Shares may
be
deposited hereunder by such delivery thereof as the Depositary or the Custodian
may reasonably
accept, including, without limitation, by causing them to be credited to an
account maintained
by the Custodian for such purpose with the Company or an accredited
intermediary, such
as a
bank, acting as a registrar for the Shares, together with delivery of the
documents, payments
and Delivery Order referred to herein to the Custodian or the Depositary.
3
The
Depositary and the Custodian shall comply with written instructions from the
Company
or its Brazilian counsel to maintain registration of the amount of Deposited
Securities with
Banco Central do Brasil (the "Central Bank") and to furnish to the Central
Bank
and to the Comissão
de
Valores Mobiliários
(the
"Securities Commission"), whenever required, information or
documents related to this Deposit Agreement, the ADRs and the Deposited
Securities and distributions
thereon, and may rely, and shall be fully protected in relying, on such written
instructions
from the Company or its Brazilian counsel in respect of such registration,
information and
documents.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery Order
by letter,
first class airmail postage prepaid, or, at the request, risk and expense of
the
person making the
deposit, by cable, telex or facsimile transmission. After receiving such notice
from the Custodian,
the Depositary, subject to this Deposit Agreement, shall properly issue at
the
Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested
and evidencing the aggregate ADSs to which such person is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary, 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 accredited intermediary,
such as a bank, acting as a
registrar for the Deposited Securities.
4
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, N.A.) shall give written notice
to
the Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms hereof. 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.
5
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may, after consultation with the
Company to the extent 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, N.A.) shall give notice in writing to the Company and the Depositary
accepting such appointment
and agreeing to be bound by the applicable terms of this Deposit
Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect 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, N.A., 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 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.
6
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 their negligence or bad faith, or (ii) by the Company or any
of
its directors, employees,
agents or affiliates.
7
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 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.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable
fees and expenses of counsel) incurred by the Company in respect of this Deposit
Agreement
to the extent such loss, liability or expense is due to the negligence or bad
faith of the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other
for
any indirect, special, punitive or consequential damages (collectively
"Special
Damages")
except
(i) to the extent such Special Damages arise from the gross negligence or
willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages
arise from or out of a claim brought by a third party (including, without
limitation, Holders)
against the Depositary or its agents, except to the extent such Special Damages
arise out of
the
gross negligence or willful misconduct of the party seeking indemnification
hereunder.
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received by
it at
the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
8
(a)
|
JPMorgan
Chase Bank, N.A.
Four
Xxx Xxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
|
(b)
|
Xx.
Xxxxx
Xxxxxx
00-00x
andar
20005-900
Rio de Janeiro
RJ
Brasil
Attention:
Xxxxxxx Xxxxxxxx Xxxxxx
Fax:
(00 00) 0000
0000
|
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal
or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners
of
ADRs from time to time shall be parties to this Deposit Agreement and shall
be
bound by
all of
the provisions hereof. If any such provision is invalid, illegal or
unenforceable in any respect,
the remaining provisions shall in no way be affected thereby. This Deposit
Agreement may
be
executed in any number of counterparts, each of which shall be deemed an
original and all
of
which shall constitute one instrument.
19. Amendment
and Restatement of Prior Deposit Agreement.
The
Deposit Agreement
amends and restates the Prior Deposit Agreement in its entirety to consist
exclusively of
the
Deposit Agreement, and each Old ADR is hereby deemed amended and restated to
substantially
conform to the form of ADR set forth in Exhibit A annexed hereto, except that,
to the
extent any portion of such amendment and restatement would prejudice any
substantial existing
right of Holders and Beneficial Owners of Old ADRs, such portion shall not
become effective
as to such Holders or Beneficial Owners with respect to such Old ADRs until
30
days after
Holders shall have received notice thereof, such notice to be conclusively
deemed given upon
the
mailing to such Holders of notice of such amendment and restatement which notice
contains
a provision whereby such Holders can receive a copy of the form of ADR.
9
IN
WITNESS WHEREOF, COMPANHIA VALE DO RIO DOCE and JPMORGAN
CHASE BANK, N.A. have duly executed this Deposit Agreement as of the day and
year
first above set forth and all holders of ADRs shall become parties hereto upon
acceptance by them
of
ADRs issued in accordance with the terms hereof.
COMPANHIA VALE DO RIO DOCE | ||
|
|
|
By: | ||
Name:
Title
|
||
By: | ||
Name: Title
|
||
JPMORGAN CHASE BANK, N.A | ||
By: | ||
Name:
Vice President
|
||
[Signature
page for the Amended and Restated Deposit Agreement dated as of September 28,
2006]
10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
____
Number
|
No.of
ADSs:
______
Each
ADS represents
One
Share
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
PREFERRED
CLASS A SHARES, WITHOUT PAR VALUE
of
(Incorporated
under the
laws
of
the Federative Republic of Brazil)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the
laws
of
the United States, 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 preferred class A 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 Amended and Restated Deposit Agreement dated as of September 28,
2006
(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 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.(1) of
Form
F-6 (as such instructions may be
amended from time to time) under the Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
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 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.
A-3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf
of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by
the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall
be
paid by the Holder hereof to the Depositary. The Depositary may refuse to effect
any registration,
registration of transfer, split-up or combination hereof or, subject to the
last
sentence of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary
may also deduct from any distributions on or in respect of Deposited Securities,
or may
sell
by public or private sale for the account of the Holder hereof any part or
all
of such Deposited
Securities (after attempting by reasonable means to notify the Holder hereof
prior to such
sale), and may apply such deduction or the proceeds of any such sale in payment
of such tax or
other
governmental charge, the Holder hereof remaining liable for any deficiency,
and
shall reduce
the number of ADSs evidenced hereby to reflect any such sales of Shares. 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.
A-4
(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 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).
(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 000
X
Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000.
A-5
(9) Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
By
................................................
Authorized
Officer
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
practicable, the Depositary will, 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 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. Fractional cents will be withheld without liability and
dealt
with by the Depositary
in accordance with its then current practices.
A-7
(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 or be responsible or otherwise obligated
in respect of other
matters and only such Holders shall be so entitled or obligated.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt 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 containing (a) such information as
is
contained in such
notice and in the solicitation materials, if any, (b) a statement that each
Holder at the close of business
on a specified record date will be entitled, subject to the provisions of or
governing Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining
to the Deposited Securities represented by the American Depositary Shares
evidenced by
such
Holders' Receipts and (c) a statement as to the manner in which such
instructions may be given.
Upon the written request of a Holder on such record date, received 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 grant a proxy to a person designated by the Custodian to vote)
the Deposited
Securities represented by the American Depositary Shares evidenced by such
Holder's Receipts
in accordance with any instructions set forth in such request. The Depositary
agrees not to
vote
the Deposited Securities represented by the American Depositary Shares evidenced
by a Receipt
other than in accordance with such instructions from the Holder of such
Receipt.
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).
A-8
(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, 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 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.
Neither the Company nor the Depositary nor any of their respective agents shall
be
liable
to Holders or beneficial owners of interests in ADSs for any indirect, special,
punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any
provision hereof.
A-9
(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 a substitute Custodian and the term
"Custodian"
refers
to each such substitute Custodian; provided, however, that at no time without
the
proper Brazilian governmental approvals shall the Depositary have more than
one
Custodian acting
for it hereunder.
(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 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.
A-10
(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-11