PETRÓLEO BRASILEIRO S. A. – PETROBRAS AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
PETRÓLEO
BRASILEIRO S. A. – PETROBRAS
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of January __, 2007
TABLE
OF CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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Section
1.
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Certain
Definitions
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(a)
ADR
Register
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1
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(b)
ADRs;
Direct Registration ADRs
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1
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(c)
ADS
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1
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(d)
Custodian
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1
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(e)
Deliver,
execute, issue et al.
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1
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(f)
Delivery
Order
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1
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(g)
Deposited
Securities
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1
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(h)
Direct
Registration System
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1
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(i)
Holder
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1
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(j)
Securities
Act of 1933
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1
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(k)
Securities
Exchange Act of 1934
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1
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(l)
Shares
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1
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(m)
Transfer
Office
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1
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(n)
Withdrawal
Order
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1
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Section
2.
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ADRs
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2
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Section
3.
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Deposit
of Shares
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2
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Section
4.
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Issue
of ADRs
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2
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Section
5.
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Distributions
on Deposited Securities
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3
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Section
6.
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Withdrawal
of Deposited Securities
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3
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Section
7.
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Substitution
of ADRs
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4
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Section
8.
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Cancellation
and Destruction of ADRs
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4
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Section
9.
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The
Custodian
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4
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Section
10.
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Co-Registrars
and Co-Transfer Agents
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4
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Section
11.
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Lists
of Holders.
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4
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Section
12.
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Depositary's
Agents
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5
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Section
13.
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Successor
Depositary
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5
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Section
14.
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Reports
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5
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Section
15.
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Additional
Shares
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5
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Section
16.
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Indemnification
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5
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Section
17.
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Notices
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6
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Section
18.
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Miscellaneous
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6
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Section
19.
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Consent
to Jurisdiction
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6
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Section
20.
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Amendment
and Restatement of Old Deposit Agreement
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6
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TESTIMONIUM
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7
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SIGNATURES
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7
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- i -
EXHIBIT
A
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FORM
OF FACE OF ADR
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A-1
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A-1
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Introductory
Paragraph
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(1)
Issuance
of ADRs
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A-2
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(2)
Withdrawal
of Deposited Securities
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A-2
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(3)
Transfers
of ADRs
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A-2
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(4)
Certain
Limitations
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A-3
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(5)
Taxes
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A-4
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(6)
Disclosure
of Interests
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A-4
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(7)
Charges
of Depositary
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A-4
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(8)
Available
Information
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A-5
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(9)
Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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A-7
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FORM
OF REVERSE OF ADR
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(10)
Distributions
on Deposited Securities
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A-7
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(11)
Record
Dates
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A-8
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(12)
Voting
of Deposited Securities
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A-8
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(13)
Changes
Affecting Deposited Securities
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A-8
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(14)
Exoneration
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A-8
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(15)
Resignation
and Removal of Depositary; the Custodian
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A-9
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(16)
Amendment
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A-9
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(17)
Termination
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A-10
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(18)
Appointment
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A-10
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- ii -
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of January __, 2007 (the "Deposit
Agreement") among PETRÓLEO
BRASILEIRO S. A. – PETROBRAS
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.
W
I T N E
S S E T H
WHEREAS,
the Company and Citibank, N.A. entered into a Deposit Agreement dated as
of
[February 1, 2001][July 14, 2000], as amended (the "Old Deposit Agreement")
to
provide for the
deposit of Shares of the Company with Citibank, N.A. or with the Custodian
as
agent of Citibank,
N.A. for the purposes set forth in such Old 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 Receipts") evidencing the American
depositary shares;
WHEREAS,
pursuant to the terms of Section 5.5 of the Old Deposit Agreement, the
Company
has removed Citibank, N.A. as depositary and has appointed JPMorgan Chase Bank,
N.A.,
as
successor depositary thereunder; and
WHEREAS,
the Company and JPMorgan Chase Bank, N.A., in its capacity as successor
depositary
under the Old Deposit Agreement, now wish to amend and restate the Old Deposit
Agreement
and the Old Receipts;
NOW
THEREFORE, in consideration of the premises, subject to Section 20 hereof,
the
parties
hereto hereby amend and restate the Old Deposit Agreement and the Old Receipts
in their entirety
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 four Shares and a pro rata share in any other Deposited
Securities.
(d) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the
context requires) and any additional or substitute Custodian appointed pursuant
to Section 9.
(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, and, when
used with respect to
ADRs
in physical certificated form, shall refer to the physical delivery, execution,
issuance, registration,
surrender, transfer or cancellation of certificates representing the
ADRs.
(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 registrationof
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) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(k) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(l) "Shares"mean
the
common shares of the Company, and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2
2.
ADRs.
(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 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 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.
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.
4
8.
Cancellation
and Destruction of ADRs.
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.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from time
to time appoint
one or more agents to act for it as Custodian hereunder. Each 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. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary.
The Depositary may discharge any Custodian at any time upon notice to the
Custodian
being discharged. Any 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 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 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, 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.
5
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by
60
days prior written notice of its election so to do delivered to the Company,
such resignation to
take
effect upon the appointment of a successor depositary and its acceptance of
such
appointment
as hereinafter provided. The Depositary may at any time be removed by the
Company by providing no less than 60 days prior written notice of such removal
to the Depositary,
such removal to take effect the later of (i) the 60th
day
after such notice of removal is first
provided and (ii) the appointment of a successor depositary and its acceptance
of such appointment
as hereinafter provided. Notwithstanding the foregoing, if upon the resignation
or removal
of the Depositary a successor depositary is not appointed within the applicable
60 day period
as
specified in paragraph (17) of the form of ADR, then the Depositary may elect
to
terminate
this Deposit Agreement and the ADR and the provisions of said paragraph (17)
shall thereafter
govern the Depositary’s
obligations hereunder. In
case
at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts
to
appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan,
The City of New York. Every successor depositary shall execute and deliver
to
its predecessor
and to the Company an instrument in writing accepting its appointment hereunder,
and
thereupon such successor depositary, without any further act or deed except
as
required by law,
shall become fully vested with all the rights, powers, duties and obligations
of
its predecessor.
The predecessor depositary, only upon payment of all sums due to it and on
the
written
request of the Company, shall (i) execute and deliver an instrument transferring
to such successor
all rights and powers of such predecessor hereunder (other than its rights
to
indemnification
and fees owing, each of which shall survive any such removal and/or
resignation), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor,
and (iii) deliver to such successor a list of the Holders of all outstanding
ADRs. Any such
successor depositary shall promptly mail notice of its appointment to such
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.
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, the Custodian and any Transfer Office, 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, the
Custodian and any Transfer Office, 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 complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable 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.
6
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 connection
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, subject to
the
penultimate paragraph
of this Section 16, for any liability or expense directly arising out of the
negligence or bad
faith
of the Depositary, or (ii) by the Company or any of its directors, employees,
agents or affiliates.
The
indemnities set forth in the preceding paragraph shall also 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
or
the Deposited Securities, 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:
7
|
(a)
|
JPMorgan
Chase Bank, N.A.
Four
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
(b)
|
Petróleo
Brasileiro S.A.– PETROBRAS
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇
▇▇▇
▇▇ ▇▇▇▇▇▇▇- ▇▇
▇▇▇▇▇▇
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
executed
in any number of counterparts, each of which shall be deemed an original and
all
of which
shall constitute one instrument.
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding
against the Company brought by the Depositary or any Holder, arising out of
or
based upon
this
Deposit Agreement or the transactions contemplated hereby, may be instituted
in
any state
or
federal court in New York, New York, and irrevocably waives any objection which
it may now
or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company also
irrevocably agrees that any legal suit, action or proceeding against the
Depositary brought by the
Company, arising out of or based upon this Deposit Agreement or the transactions
contemplated
hereby, may only be instituted in a state or federal court in New York, New
York. The
Company has appointed its New York office, currently located at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent (the "Authorized Agent")
upon
which process
may be served in any such action arising out of or based on this Deposit
Agreement or the transactions
contemplated hereby which may be instituted in any state or federal court in
New
York,
New
York by the Depositary or any Holder, and waives any other requirements of
or
objections
to personal jurisdiction with respect thereto. The Company represents and
warrants that
the
Authorized Agent has agreed to act as said agent for service of process, and
the
Company agrees
to
take any and all action, including the filing of any and all documents and
instruments, that
may
be necessary to continue such appointment in full force and effect as aforesaid.
Except to the
extent prohibited by applicable law, service of process upon the Authorized
Agent and written notice
of
such service to the Company shall be deemed, in every respect, effective service
of process
upon the Company. If, for any reason, the Authorized Agent named above or its
successor shall
no
longer serve as agent of the Company to receive service of process in New York,
the Company
shall promptly appoint a successor acceptable to the Depositary, so as to serve
and will promptly
advise the Depositary thereof. In the event the Company fails to continue such
designation
and appointment in full force and effect, the Company hereby waives personal
service of process upon it and consents that any such service of process may
be
made by certified or registered
mail, return receipt requested, directed to the Company at its address last
specified for notices
hereunder, and service so made shall be deemed completed five (5) days after
the
same shall
have been so mailed. Notwithstanding the foregoing, any action based on this
Agreement may
be
instituted by the Depositary or any Holder in any competent court in the
Federative Republic
of Brazil.
8
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may
hereafter be entitled to, or have attributed to it, any right of immunity,
on
the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of
any
relief in any
respect thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment,
or from execution of judgment, or other legal process or proceeding for the
giving of any
relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any
time
be commenced, with respect to its obligations, liabilities or other matter
under
or arising out
of or
in connection with the Shares or Deposited Securities, the ADSs, the ADRs or
this Agreement,
the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief
and enforcement.
20. Amendment
and Restatement of Old Deposit Agreement.
The
Deposit Agreement amends
and restates the Old Deposit Agreement in its entirety to consist exclusively
of
the Deposit
Agreement, and each Old Receipt 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 either such amendment and restatement would prejudice any substantial
existing right of
owners
of Old Receipts, such portion shall not become effective as to such owners
until
30 days
after such owners shall have received notice thereof, such notice to be
conclusively deemed given
upon the mailing to such owners of notice of such amendment and restatement
which notice contains
a provision whereby such owners can receive a copy of the form of
ADR.
9
IN
WITNESS WHEREOF, PETRÓLEO
BRASILEIRO S. A. – PETROBRAS
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.
PETRÓLEO
BRASILEIRO S. A. – PETROBRAS
By:_____________________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A.
By:_____________________________
Name:
Title:
Vice President
10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
|
______
Number
|
No. of ADSs: |
| ______________ | |
|
Each
ADS represents
Four
Shares
|
|
| CUSIP: |
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
PETRÓLEO
BRASILEIRO S. A. – PETROBRAS
(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 of America , 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 four common shares
(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 PETRÓLEO
BRASILEIRO S. A. – PETROBRAS,
a
corporation organized under the laws of The Federative Republic of Brazil (the
"Company"),
deposited under the Amended and Restated Deposit Agreement dated as of January
,
2007
(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, government securities or such other collateral
as
the Depositary
deems appropriate held by the Depositary for the benefit of Holders (but such
collateral
shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs represents
and agrees in writing with the Depositary that such recipient or its customer
(a) beneficially
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). 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, nonassessable and free of pre-emptive rights, 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), 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, or to the extent in dematerialized form from, 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
(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
and
neither the
Depositary nor the Company will have any obligation or be subject to any
liability under the Deposit
Agreement to any holder of an ADR, unless such holder is the Holder thereof.
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 aggregate number of ADSs
surrendered
for split-up or combination, by the Holder hereof or by 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 or 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 of any signatory 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, in order to comply with applicable law, by 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. 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
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. Each Holder of an
ADR
or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective
directors, employees, agents and affiliates against, and hold each of them
harmless from,
any
claims by any governmental authority with respect to taxes, additions to tax,
penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit
obtained.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited
Securities may require disclosure of or impose limits on beneficial or other
ownership of
Deposited Securities, other Shares and other securities and may provide for
blocking transfer, voting
or
other rights to enforce such disclosure or limits, Holders and all persons
holding ADRs agree
to
comply with all such disclosure requirements and ownership limitations and
to
comply with
any
reasonable Company instructions in respect thereof. The Company reserves the
right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so
as to
permit the Company to deal directly with the Holder thereof as a holder of
Shares and Holders
agree to comply with such instructions. The Depositary agrees to cooperate
with
the Company
in its efforts to inform Holders of the Company's exercise of its rights under
this paragraph and agrees to consult with, and provide reasonable assistance
without risk, liability or expense
on the part of the Depositary, to the Company on the manner or manners in which
it may enforce
such rights with respect to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs
are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph
(10)), issuances pursuant to a stock dividend or stock split declared by
the Company, or issuances
pursuant to a merger, exchange of securities or any other transaction or
event affecting the
ADSs
or the Deposited Securities, and (ii) each person surrendering ADSs for
withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each
100
ADSs (or portion thereof) issued, delivered, reduced, cancelled or
surrendered (as the case
may
be). 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 ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution
of ADSs pursuant to paragraph (10)), whichever is applicable (i) a fee of
U.S.$0.02 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 the primary stock exchange
upon which the
ADSs
are listed, a fee of U.S.$1.50 per ADR or ADRs for transfers made pursuant
to
paragraph
(3) hereof, (iii) a fee for the distribution or sale 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, (iv)
a
fee of U.S.$0.02 per ADS (or portion thereof) in each calendar year
for
the services performed by the Depositary in administering the ADRs (which fee
shall be assessed
against Holders as of the record date or dates set by the Depositary not more
than once each
calendar year and shall be payable at the sole discretion of the Depositary
by
billing such Holders
or by deducting such charge from one or more cash dividends or other cash
distributions), 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. 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 or 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) any other charge
payable by any of the Depositary, any of the Depositary’s
agents,
including, without limitation,
the Custodian, or the agents of the Depositary’s agents in connection with the
servicing of
the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the
record date or dates set by the Depositary and shall be payable at the sole
discretion of the Depositary
by billing such Holders or by deducting such charge from one or more cash
dividends or
other
cash distributions). Such charges may at any time and from time to time be
changed by agreement
between the Company and the Depositary.
A-5
(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 distribute
copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by
the
Company. 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
hereof at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(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 ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
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 distribute 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 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 reasonable
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)
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 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).
|
A-7
| (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. Subject to the
other provisions
hereof and of the Deposit Agreement, the Depositary shall cause any Cash
distribution that
is
paid in a currency other than U.S. dollars to be converted into U.S. dollars
as
promptly as reasonably
practicable under the circumstances after the receipt thereof.
(11)
Record
Dates.
The
Depositary may or shall if required, in each case after consultation
with
the
Company if practicable, fix a record date (which, to the extent applicable,
shall be as near as
practicable to any corresponding record date set by the Company) for the
determination of the Holders
who shall be responsible for the fee assessed by the Depositary for
administration of the ADR
program and for any expenses provided for in paragraph (7) hereof as well as
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
or
obligated.
(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 distribute 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, subject to any applicable
provisions of Brazilian
law, rule and/or regulation be entitled to instruct 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 instructions
to give a discretionary proxy to a person designated by the Company. Upon
receipt of 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 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.
A-8
To
the
extent such instructions are not so received by the Depositary from any Holder,
the Depositary
shall take such action as is necessary, upon the written request of the Company
and subject
to applicable law, and the terms and conditions of the Deposited Securities,
to
cause such underlying
Shares to be counted for the purposes of satisfying applicable quorum
requirements;
There
can be no assurance that Holders generally or any Holder in particular will
receive the notice
described above with sufficient time to enable such Holder to return voting
instructions to the
Depositary in a timely manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its reasonable 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, irrespective of whether
such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule,
regulation or
otherwise, 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 present or future law, rule or regulation of the United
States, The Federative
Republic of Brazil or any other country, or of any governmental or regulatory
authority or
any
securities exchange or market or automated quotation system, the provisions
of
or governing
any Deposited Securities, any present or future provision of the Company's
charter, any act
of
God, war, terrorism or other circumstance beyond its control (including, without
limitation, nationalization,
expropriation, currency restrictions, work stoppage, strike, civil unrest,
revolutions,
rebellions, explosions and computer failure) 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
them (including, without limitation, voting pursuant to paragraph (12)
hereof),
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 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 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 may own and deal in any class of securities of the Company and its
affiliates and in ADRs.
Notwithstanding anything to the contrary set forth in the Deposit Agreement
or
an ADR, the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained
by or on its behalf in connection with the Deposit Agreement, any Holder or
Holders, any
ADR
or ADRs or otherwise related hereto to the extent such information is requested
or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations,
administrative or judicial process, banking, securities or other regulators.
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.
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(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as
Depositary by 60 days prior written notice of its election so to do delivered
to
the Company, such
resignation to take effect upon the appointment of a successor depositary
and its acceptance of
such
appointment as provided in the Deposit Agreement. The Depositary may at
any time be removed
by the Company by no less than 60 days prior written notice of such removal,
to
become effective
upon the later of (i) the 60th day after delivery of the notice to the
Depositary and (ii) the appointment
of a successor depositary and its acceptance of such appointment as provided
in
the Deposit
Agreement. 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, 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. 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 or regulatory 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 laws, rules or regulations. 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;
provided, however,
if the Depositary shall have (i) resigned as Depositary hereunder, notice of
such termination
by the Depositary shall not be provided to Holders unless a successor depositary
shall not
be
operating hereunder within 60 days of the date of such resignation, and (ii)
been removed as
Depositary hereunder, notice of such termination by the Depositary shall not
be
provided to Holders
unless a successor depositary shall not be operating hereunder on the
60th
day
after the Company's
notice of removal was first provided to the Depositary. 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 to in respect of the Deposit Agreement and this ADR, except to
account for such
net
proceeds and other cash and for its obligations to the Company under Section
16
of the Deposit
Agreement. 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 (including, without limitation, those under Section 16 of the Deposit
Agreement).
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and
conditions
of the Deposit Agreement shall be deemed for all purposes to (a) be a party
to
and bound
by
the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint
the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and
to
take any and all
actions contemplated in the Deposit Agreement and the applicable ADR(s), to
adopt any and all
procedures necessary to comply with applicable law and to take such action
as
the Depositary may
deem
necessary or appropriate under the Deposit Agreement to carry out the purposes
of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant
of the necessity and appropriateness thereof.
A-11