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BANCO BRADESCO S.A.
AND
CITIBANK, N.A.,
As Depositary,
AND
HOLDERS AND BENEFICIAL OWNERS FROM TIME TO TIME OF AMERICAN DEPOSITARY SHARES
EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS
________________________________
Amendment No. 1
to
Amended and Restated Deposit Agreement
Dated as of March 19, 2004
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AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT is made as of
March 19, 2004 (the "Amendment"), by and among Banco Bradesco S.A., a banking
company incorporated under the laws of the Federal Republic of Brazil (the
"Bank"), CITIBANK, N.A., a national banking association organized under the laws
of the United States of America and acting solely as depositary (the
"Depositary"), and all Holders and Beneficial Owners from time to time of
American Depositary Shares evidenced by American Depositary Receipts issued
under the Amended and Restated Deposit Agreement (as hereinafter defined).
W I T N E S S E T H T H A T
WHEREAS, the parties hereto entered into that certain Amended and Restated
Deposit Agreement, dated as of November 21, 2001 (the "Amended and Restated
Deposit Agreement"), for the creation of American Depositary Receipts ("ADRs")
evidencing American Depositary Shares ("ADSs") representing the Shares (as
defined in the Amended and Restated Deposit Agreement) so deposited and for the
execution and delivery of such ADRs evidencing such ADSs;
WHEREAS, on March 19, 2004, the Bank effectuated a reverse split of its
Shares pursuant to the terms of which holders of the Bank's Shares received one
(1) new Share in exchange for every 10,000 Shares held on such date;
WHEREAS, in connection with the reverse split of the Shares, the Bank has
elected to change the ratio of Shares-to-ADSs (as set forth in Section 1.2 of
the Amended and Restated Deposit Agreement), from (i) five thousand (5,000)
Shares-to-one (1) ADS to (ii) one (1) Share-to-one (1) ADS, and desires to amend
the Amended and Restated Deposit Agreement to effect such change; and,
WHEREAS, pursuant to Section 6.01 of the Amended and Restated Deposit
Agreement, the Bank and the Depositary deem it necessary and desirable to amend
the Amended and Restated Deposit Agreement and the form of ADR annexed thereto
as Exhibit A for the purposes set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Bank and the Depositary hereby
agree to amend the Amended and Restated Deposit Agreement as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Amended and Restated Deposit Agreement.
ARTICLE II
AMENDMENTS TO AMENDED AND RESTATED DEPOSIT AGREEMENT
SECTION 2.01. Amended and Restated Deposit Agreement. All references in
the Amended and Restated Deposit Agreement to the term "Amended and Restated
Deposit Agreement" or "Deposit Agreement" shall, as of the Effective Date (as
defined in Section 5.01 hereof), refer to the Amended and Restated Deposit
Agreement, dated as of November 21, 2001, and as amended by this Amendment.
SECTION 2.02. Change of Ratio. All references made in the Amended and
Restated Deposit Agreement to each ADS representing five thousand (5,000) Shares
shall, as of the Effective Date (as defined in Section 5.01 hereof), refer to
each ADS representing one (1) Share.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. Change of Ratio. All references to each ADS representing
five thousand (5,000) Shares made in the ADRs issued and outstanding as of the
Effective Date shall, as of the Effective Date (as defined in Section 5.01
hereof), refer to each ADS representing one (1) Share.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Bank represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Bank, and the
Amended and Restated Deposit Agreement and all other documentation
executed and delivered by the Bank in connection therewith, will be and
have been, respectively, duly and validly authorized, executed and
delivered by the Bank, and constitute the legal, valid and binding
obligations of the Bank, enforceable against the Bank in accordance with
their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
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(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Amended and Restated
Deposit Agreement as amended hereby, and any other document furnished
hereunder or thereunder in the Federative Republic of Brazil, neither of
such agreements need to be filed or recorded with any court or other
authority in the Federative Republic of Brazil, nor does any stamp or
similar tax need to be paid in the Federative Republic of Brazil on or in
respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in
connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as of such date (the "Effective Date").
SECTION 5.02. New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued hereunder after the
Effective Date, once such new ADRs are available, whether upon the deposit of
Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall be substantially in the form of the specimen
ADR attached as Exhibit A hereto. The Depositary is authorized and directed to
take any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders of: (i) the terms of this
Amendment; (ii) the Effective Date of this Amendment; and, (iii) that the
Holders shall be requested to surrender outstanding ADRs for cancellation and
mandatory exchange for new ADRs reflecting the new Shares-to-ADS ratio, the new
number of ADSs such Holder is entitled to receive and the new CUSIP number for
the ADSs.
SECTION 5.04. Indemnification. The Bank agrees to indemnify and hold
harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
SECTION 5.05. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Amended and Restated Deposit Agreement as
originally executed shall remain in full force and effect.
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IN WITNESS WHEREOF, the Bank and the Depositary have caused this Amendment
to be executed by representatives thereunto duly authorized as of the date set
forth above.
BANCO BRADESCO S.A.
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Title: Director Vice-President
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By: /s/ ▇▇▇▇▇▇ de Cliveira
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Name: ▇▇▇▇▇▇ de Cliveira
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Title: Director Gerente
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CITIBANK, N.A., as Depositary
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Neto
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
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CUSIP Number ▇▇▇▇▇▇▇▇▇
American Depositary
Shares (1 American
Depositary Share representing
1 fully paid
non-voting preferred share
without par value)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
Number
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED NON-VOTING PREFERRED SHARES WITHOUT PAR VALUE
of
BANCO BRADESCO S.A.
(Incorporated under the laws of
the Federative Republic of Brazil)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that ___________________ is the owner of ______
American Depositary Shares, each representing 1 deposited non-voting preferred
share, without par value, including evidence of rights to receive such
non-voting preferred shares (the "Shares") of Banco Bradesco S.A., a banking
company incorporated under the laws of the Federative Republic of Brazil (the
"Bank"). As of the date of the Deposit Agreement (hereinafter referred to), each
American Depositary Share represents 1 Share deposited under the Deposit
Agreement with the Custodian which at the date of execution of the Deposit
Agreement is Banco Bradesco S.A. (the "Custodian"). The ratio of Depositary
Shares to shares of stock is subject to subsequent amendment as provided in
Article IV of the Deposit Agreement. The Depositary's principal executive office
is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(1) The Deposit Agreement. This American Depositary receipt is one of an
issue of American Depositary Receipts ("Receipts") executed and delivered
pursuant to the Amended and Restated Deposit Agreement, dated as of November 21,
2001 and amended as of March 19, 2004 (as so amended and as further amended from
time to time, the "Deposit Agreement"), by and among the Bank, the Depositary,
and all registered Holders and Beneficial Owners of Receipts from time to time
of Receipts issued thereunder,
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each of whom by accepting a Receipt agrees to become a party thereto and become
bound by all the terms and conditions thereof. The Deposit Agreement sets forth
the rights and obligations of Holders and Beneficial Owners and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash, collectively, "Deposited Securities"). Copies of the Deposit Agreement
are on file at the Principal Office of the Depositary and the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Charter and are qualified
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities.
(2) Surrender of ADSs and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary of this Receipt and upon
payment of (i) the applicable fees, taxes and governmental charges payable in
connection with such surrender and withdrawal (in each case, as set forth in
paragraph (10) hereof and Section 5.09 and Exhibit B of the Deposit Agreement),
and, subject to the terms and conditions of the Deposit Agreement the Bank's
Charter, paragraph (23) of this Receipt and the provisions of or governing the
Deposited Securities and other applicable laws, the Holder hereof is entitled to
the delivery, to it or upon its order, of the amount of Deposited Securities at
the time represented by the ADSs evidenced by this Receipt. Subject to this
paragraph (2), such Deposited Securities may be delivered in registered form or
by electronic delivery. Such Deposited Securities may be delivered by the
delivery of (a) certificates in the name of the Holder hereof or as ordered by
it or by certificates properly endorsed or accompanied by proper instruments of
transfer to such Holder or as ordered by it and (b) any other securities,
property and cash to which such Holder is then entitled in respect of such ADSs.
Delivery shall be made without unreasonable delay, at the principal office of
the Custodian or subject to the last sentence of this paragraph at the Principal
Office of the Depositary for further delivery to such Holder.
A Receipt surrendered for such purposes shall if so required by the
Depositary be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Holder thereof shall
execute and deliver to the Depositary a written order directing the Depositary,
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon, the
Depositary shall direct the Custodian to deliver at the designated office of the
Custodian, subject to Sections 2.07, 3.01, 3.02, 5.09 and to the other terms and
conditions of the Deposit Agreement, the Bank's Charter, and to the provisions
of or governing the Deposited Securities and other applicable laws, now or
hereafter in effect, to or upon the written order of the person or persons
designated in the order delivered to the Depositary if so required by the
Depositary as provided above, the Deposited Securities represented by the
American Depositary Shares surrendered for such purpose together with any
certificate or other proper documents of or relating to title for the Deposited
Securities, or evidence of the electronic transfer thereof (if available), as
the case may be, to or for the account of such person except that the Depositary
may make delivery to such person or persons at the Principal Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by such ADSs, or of any proceeds of sale of any
dividends, distributions or rights, which may at the time be held by the
Depositary.
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The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of surrender ADSs representing other than a whole number
of Shares, the Depositary shall cause ownership of the appropriate whole number
of Shares to be recorded in the name of the Holder surrendering such ADS, and
shall deliver to the person surrendering such ADS either (i) return of the
ADS(s) representing any remaining fractional share or (ii) sell or cause to be
sold the fractional share represented by the ADS(s) so surrendered and remit the
net cash proceeds from the sale by the Depositary of any remaining fractional
Share.
Notwithstanding anything else contained in the ADR or this Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of, and any certificate(s) and other documents of or relating to title
to, the Deposited Securities represented by such ADSs to the Depositary for
delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or by cable or telex, at the request, risk and expense of such
Holder, by facsimile transmission.
(3) Transfers, Split-Ups and Combinations of Receipts. The Registrar,
subject to the terms and conditions of the Deposit Agreement, shall without
unreasonable delay register transfers of this Receipt on its transfer books from
time to time, upon any surrender to the Principal Office of the Depositary of
this Receipt by the Holder hereof in person or by duly-authorized attorney,
properly endorsed or accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard industry practice and, in the
case of any Receipt, the accurate completion of any endorsements appearing on
such Receipt) and duly stamped as may be required by the laws of the State of
New York and of the United States of America. Subject to the terms and
conditions of the Deposit Agreement, including payment of the fees set forth in
Section 5.09 and Exhibit B to the Deposit Agreement, the Depositary shall
execute and cause the Registrar to countersign, a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto evidencing
the same aggregate number of American Depositary Shares as those evidenced by
the Receipts surrendered, subject to receipt of any certifications, if any, as
the Depositary and the Bank may require in order to comply with applicable laws.
The Depositary, subject to the terms and conditions of the Deposit
Agreement shall, upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, and upon
payment to the Depositary of the applicable fees and charges set forth in
Section 5.09 and in Exhibit B to the Deposit Agreement, if any, execute and
cause the Registrar to countersign and deliver, a new Receipt or Receipts for
any authorized number of American Depositary Shares requested, evidencing the
same aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered.
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(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration, registration of issuance
or transfer, split-up, combination or surrender of this Receipt, the delivery of
any distribution hereon or withdrawal of any Deposited Securities, and subject
to paragraph (23) of this Receipt, the Depositary, the Custodian, any Registrar
or the Share Registrar may require (a) payment from the depositor of Shares or
presenter of ADSs) or of a Receipt of a sum sufficient to reimburse it for any
tax, or other governmental charge and any stock transfer or registration fee
with respect thereto (including any such tax, or charge and fee with respect to
Shares being deposited or withdrawn) and payment of any applicable fees and
charges as provided in this Receipt, (b) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matter
contemplated in Section 3.01 of the Deposit Agreement and paragraph (9) hereof
and (c) subject to paragraph (23) of this Receipt, compliance with (i) any
United States, Brazilian or other applicable laws or governmental regulations
relating to Receipts or American Depositary Shares or to the withdrawal of
Deposited Securities, and (ii) such reasonable regulations, if any, as the
Depositary and the Bank may establish consistent with the provisions of this
Receipt, the Deposit Agreement and applicable law.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of Receipts
against the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, or the surrender of
outstanding Receipts for the purpose of withdrawal of Deposited Securities may
be suspended, during any period when the transfer books of the Bank, the
Depositary or the Share Registrar are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Bank, in good faith at any time
or from time to time, because of any requirement of law, any government or
governmental body or commission or any securities exchange or automated
inter-dealer quotation system on which the Receipts or Shares are listed or
quoted, or under any provision of the Deposit Agreement or provisions of or
governing Deposited Securities or under the Bank's Charter or any meeting of
shareholder of the Bank or for any other reason, subject in all cases to
paragraph (23) hereof. Notwithstanding any provision of the Deposit Agreement or
of this Receipt, the surrender of outstanding Receipts and withdrawal of
Deposited Securities may not be suspended or refused, except as required in
General Instructions IA(1) to Form F-6 (as may be amended from time to time)
under the Securities Act in connection with (i) temporary delays relating to the
deposit of Shares in connection with voting at a shareholders' meeting or the
payment of dividends, (ii) the payment of fees, taxes, and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
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(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner agrees to comply with requests from the Bank from time to time, including
requests made pursuant to Brazilian law, the rules and requirements of the Sao
Paulo Stock Exchange, and any other stock exchange on which the Shares are, or
will be, registered, traded or listed, or the Charter, which are made to provide
information, inter alia, as to the capacity in which such Holder or Beneficial
Owner, as applicable, owns ADSs (and Shares as the case may be) and regarding
the identity of any other person(s) interested in such ADSs and the nature of
such interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request. The Depositary agrees to use its
reasonable efforts to comply, at the Bank's expense, with written instructions
received from the Bank in a timely manner requesting that the Depositary forward
any such request from the Bank to the Holders and to forward to the Bank any
such responses to such requests received by the Depositary.
(6) Ownership Restrictions. Notwithstanding any other provision in the
Deposit Agreement or this Receipt, the Bank may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
by applicable law or the Charter. The Bank may also restrict, in such manner as
it deems appropriate, transfers of the American Depositary Shares where such
transfer may result in the total number of Shares represented by the American
Depositary Shares beneficially owned by a single Holder or Beneficial Owner to
exceed any such limits. The Bank may, in its sole discretion, but in each case,
subject to application law, instruct the Depositary to take action with respect
to the ownership interest of any Holder or Beneficial Owner in excess of the
limitation set forth in the preceding sentence, including but not limited to,
the imposition of restrictions on the transfer of ADSs, the removal or
limitation of voting rights or the mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the American Depositary
Shares held by such Holder or Beneficial Owner in excess of such limitations.
The Depositary and the Bank (i) shall comply with the laws, rules,
regulations and orders of any nature whatsoever (collectively, "Regulations") of
the Brazilian Monetary Council, the Central Bank of Brazil (Banco Central do
Brasil, or "Central Bank") and the Brazilian Securities Commission (Comissao de
Valores Mobiliarios or the "CVM") as such Regulations may be amended from time
to time, as applicable to the transactions contemplated in the Deposit
Agreement, including without limitations the provisions of Article 3 of Annex V
to Brazil's Monetary Council Resolution number 1,289, as amended, and (ii) agree
to furnish to the CVM and the Central Bank, whenever required, any and all
information and documents required pursuant to any such Regulations, including
without limitation any such information or documents related to the approved ADR
program (including, without limitation, the ADSs and the Receipts), the
Deposited Securities and distributions thereon, or the Deposit Agreement or the
obligations of the Depositary or the Bank thereunder.
(7) Liability of Holder for Taxes, and Other Charges. If any tax or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities represented by the American Depositary Shares evidenced
hereby, such tax or other governmental charge shall be payable by the Holder and
Beneficial Owner of this Receipt to the Depositary. The Depositary may refuse to
effect any registration of transfer of all or part of this Receipt or to issue
any new Receipt or Receipts or to permit any deposit or withdrawal of Deposited
Securities represented by the American Depositary Shares evidenced hereby until
such payment is made, and the Bank, Custodian and/or the Depositary may withhold
or deduct from any dividends or other distributions, or may sell for the account
of the Holder hereof any part or all of the Deposited Securities represented by
the American Depositary Shares evidenced by this Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge, the Holder hereof remaining liable for
any deficiency. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Bank, the Custodian, and any of their agents, officers,
employees and Affiliates for, and to hold each of them harmless from, any claims
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
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(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that, (i) such Shares and the certificate therefor are duly authorized,
validly issued and outstanding, fully paid and non-assessable, and legally
obtained by such person, (ii) all preemptive rights, if any, with respect to
such Shares have been validly waived or exercised, (iii) the person making such
deposit is duly authorized to do so, (iv) and the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Each such person shall also be deemed to
represent that the Shares presented for deposit are not, and the American
Depositary Shares issuable upon such deposit will not be Restricted Securities
and that the deposit of Shares or sale of the ADSs by that person is not
restricted under the Securities Act of 1933. Such representations and warranties
shall survive any such deposit, and withdrawal of Shares and the issuance and
cancellation of Receipts in respect thereof. If any such representations or
warranties are false in any way, the Bank and the Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to take any
and all actions reasonably necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may, be
required and every Holder and Beneficial Owner agrees from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges; exchange control approval, legal or beneficial ownership
of ADS(s) and Deposited Securities, compliance with applicable laws and the
terms of the Deposit Agreement or the Receipt(s) evidencing the ADS(s) and the
provisions of, or governing, the Deposited Securities, to execute such
certifications and to make such representations and warranties, and to provide
such other information and documentation (or, in the case of Shares in
registered form presented for deposit, such information relating to the
registration on the books of the Bank or of the appointed agent of the Bank for
the registration and transfer of Shares), to execute such certificates and to
make such representations and warranties, as the Depositary or Custodian may
deem necessary or proper or as the Bank may reasonably require by written
request to the Depositary consistent with its obligations hereunder. The
Depositary and the Registrar, as applicable, may withhold the execution or
delivery or registration of transfer of this Receipt or the distribution or sale
of any dividend or distribution of rights or of the proceeds thereof, or, to the
extent not limited by the terms of Section 7.08 of the Deposit Agreement and
paragraph (23) hereof, the delivery of any Deposited Securities until such proof
or other information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Custodian's, the Registrar's and the
Bank's satisfaction.
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(10) Fees and Charges of Depositary. The Depositary shall charge the
following fees for the services performed under the terms of the Deposit
Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
fraction thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraphs (iii)
and (v) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) No Fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or other
free distributions of stock) so long as the charging of such
fee is prohibited by the exchange upon which the ADSs are
listed. If charging of such fees is not prohibited, the fees
specified in (i) above shall be payable in respect of ADS
distributions pursuant to stock dividends (or other free
distributions of stock) and the fees specified in (iv) below
shall be payable in respect of distributions of cash;
(iv) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or fraction thereof) held for the distribution of
cash proceeds (i.e., upon the sale of rights and other
entitlements); and
(v) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00
per 100 ADSs (or fraction thereof) issued upon the exercise of
rights to purchase additional ADSs
In addition, Holders, Beneficial Owners, persons depositing Shares
for deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
A-11
(iv) the expenses and charges incurred by the Depositary in the
conversion of Foreign Currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Bank upon agreement between the Depositary and the
Bank. All fees and charges may, at any time and from time to time, be changed by
agreement between the Depositary and Bank but, in the case of fees and charges
payable by Holders or Beneficial Owners, only in the manner contemplated by
paragraph (21) of this ADR. The Depositary will provide, without charge, a copy
of its latest fee schedule to anyone upon request. The charges and expenses of
the Custodian are for the sole account of the Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each American Depositary Share
evidenced hereby), when this Receipt is properly endorsed or accompanied by a
proper instrument or instruments of transfer (including signature guarantees in
accordance with standard industry practice), is transferable by delivery with
the same effect as in the case of a certificated security under the laws of the
State of New York, provided, however, that the Bank and the Depositary,
notwithstanding any notice to the contrary, may deem and treat the Holder in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to any
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes, and neither the Depositary
nor the Bank shall have the obligations or be subject to any liability hereunder
or under the Deposit Agreement to any holder of a Receipt unless such holder is
a Holder hereof.
(12) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose
against the Depositary or the Bank, unless this Receipt has been (i) dated, (ii)
signed by the manual or facsimile signature of a duly authorized signatory of
the Depositary, (iii) countersigned by the manual or facsimile signature of a
duly authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
ADRs.
A-12
Dated: CITIBANK, N.A.,
as Depositary
Countersigned:
By: By:
---------------------------- -----------------------------
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 111 Wall Street,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
A-13
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Reports; Inspection of Transfer Books. The Bank is subject to the
periodic reporting requirements of the Exchange Act and accordingly will file
certain information with the Commission. These reports and documents can be
inspected and copies at the public reference facilities maintained by the
Commission located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
The Depositary shall make available for inspection by Holders at its
Principal Office any reports or communications, including any proxy soliciting
materials, received from the Bank which are both (a) received by the Depositary,
the Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Bank. The Depositary shall, if so requested by, and at the
expense of, the Bank, also send to Holders copies of such reports when furnished
by the Bank to the Depositary, the Custodian, or the nominee of either of them
as the holder of the Deposited Securities pursuant to Section 5.06 of the
Deposit Agreement.
The Registrar shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Bank and by the Holders of such receipts, provided that such inspection
shall not be, to the Registrar knowledge, for the purpose of communicating with
Holders of such Receipts in the interest of a business or object other than the
business of the Bank or a matter related to the Deposit Agreement or the
Receipts.
The Registrar may close the transfer books, with respect to the Receipts,
at any time or from time to time, when deemed necessary or advisable by it in
good faith in connection with the performance of its duties hereunder, or at the
reasonable written request of the Bank, subject in all cases, to paragraph (23)
herein.
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives any cash dividend or other cash distribution on any
Deposited Securities or proceeds from the sale of Deposited Securities, the
Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary, pursuant to Section 4.08
of the Deposit Agreement, be converted on a practicable basis, into Dollars
transferable to the United States, and subject to the Deposit Agreement,
promptly convert or cause to be converted such dividend or distribution into
Dollars and will distribute promptly the amount thus received (net of fees of,
and expenses incurred by, the Depositary) to the Holders entitled thereto as of
the record date established pursuant to Section 4.09 of the Deposit Agreement
and paragraph (15) hereof, in proportion to the number of American Depositary
Shares held by them respectively. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one Cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of Receipts then outstanding. If the Bank or the Depositary is required
to withhold and does withhold from any cash dividend or other cash distribution
in respect of any Deposited Securities an amount on account of taxes or other
governmental charges, the amount distributed to Holders on the American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded to the relevant
governmental authority by the person holding the withheld amounts. Evidence of
any such payment by the Bank to such government authority shall be forwarded by
the Bank to the Depositary upon request.
A-14
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Bank shall cause such Shares to be
deposited with and registered in the name of the Custodian and thereupon the
Depositary may, with the Bank's approval, and shall, if the Bank so requests,
subject to Section 5.07 of the Deposit Agreement, either (i) distribute to the
Holders entitled thereto, as of the record date fixed pursuant to Section 4.09
of the Deposit Agreement, in proportion to the number of American Depositary
Shares held by them respectively, additional Receipts for American Depositary
Shares, which represents in aggregate the number of Shares received as such
dividend, or free distribution, subject to the terms of the Deposit Agreement,
including, without limitation, Sections 2.02, 2.04, 5.07 and 5.09 of the Deposit
Agreement; in lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary shall sell the number of Shares or ADSs,
as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.02 of the Deposit Agreement, or (ii) if additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. In the event that the Depositary determines that
any distribution in property (including Shares) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or, if after
the Bank, in the fulfillment of its obligations under Section 5.07 of the
Deposit Agreement, has furnished an opinion of U.S. counsel determining that
Shares must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective), or if the Bank does not provide a satisfactory opinion as provided
in Section 5.07 of the Deposit Agreement, the Depositary may adopt such methods,
if any, as the Depositary may deem equitable and practicable (after consultation
with the Bank) for purposes of effecting such distribution, including disposal
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable to pay any such taxes or
charges, or effect the distribution of unregistered Shares, and the Depositary
shall distribute the net proceeds of any such sale after deduction of such taxes
or charges to Holders entitled thereto in proportion to the number of American
Depositary Shares held by them respectively and the Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the provisions
of the Deposit Agreement.
Whenever the Bank intends to distribute to the holders of the Deposited
Securities rights to subscribe for additional Shares, the Bank shall give notice
thereof to the Depositary at least forty-five (45) days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Holders of ADSs. Upon timely receipt of a notice indicating that the Bank
wishes such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Bank to determine, and the Bank shall assist the Depositary in
its determination, whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make such rights available
to Holders only if (i) the Bank shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.07 of the Deposit Agreement, and
(iii) the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are
not satisfied or if the Bank requests that the rights not be made available to
Holders of ADSs, the Depositary shall proceed with the sale of the rights as
A-15
contemplated in Section 4.4(b) of the Deposit Agreement. In the event all
conditions set forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 4.09 of the Deposit Agreement)
and establish procedures to (x) distribute rights to purchase additional ADSs
(by means of warrants or otherwise), (y) to enable the Holders to exercise such
rights (upon payment of the subscription price and of the applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes), and (z)
to deliver ADSs upon the valid exercise of such rights. The Bank shall assist
the Depositary to the extent reasonably necessary in establishing such
procedures. Nothing herein shall obligate the Depositary to make available to
the Holders a method to exercise rights to subscribe for Shares (rather than
ADSs).
If (i) the Bank does not timely request the Depositary to make the rights
available to Holders or requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive satisfactory documentation within
the terms of Section 5.07 of the Deposit Agreement or determines it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem practicable. The Bank
shall assist the Depositary to the extent reasonably necessary to determine such
legality and practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.01 of the Deposit Agreement.
If the Depositary is unable to make any rights available to Holders upon
the terms described in Section 4.04(a) of the Deposit Agreement or to arrange
for the sale of the rights upon the terms described in Section 4.04(b) of the
Deposit Agreement, the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or exercise, or (iii) the content of any
materials forwarded to the Holders on behalf of the Bank in connection with the
rights distribution.
In the event that the Bank, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the even that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
Because Brazilian law presently does not contemplate the issuance of rights in
negotiable form and the possibility of such issuance is unlikely, a liquid
market for rights may not exist, and this may adversely affect (1) the ability
of the Depositary to dispose of such rights or (2) the amount the Depositary
would realize upon disposal of rights.
A-16
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Bank to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Nothing in this Receipt or in the Deposit Agreement shall create, or shall
be construed to create, any obligation on the part of the Bank to secure an
exemption from the registration requirements of the Securities Act for any such
rights or securities or to file such a registration statement or to endeavor to
have such a registration statement declared effective. The Holders alone shall
be responsible for the payment of any taxes or other governmental charges due as
a result of transfers pursuant to Section 4.04 of the Deposit Agreement.
Whenever the Custodian shall receive any distribution other than cash,
Shares or rights to purchase any Deposited Securities, the Depositary shall,
after consultation with the Bank, and after obtaining, at the Bank's expense,
opinion(s) of counsel satisfactory to the Depositary that the proposed
distribution does not violate any applicable laws or regulations, cause the
securities or property so received to be distributed to the Holders entitled
thereto, as of a record date fixed pursuant to Section 4.09 of the Deposit
Agreement, in proportion to the number of American Depositary Shares held by
them respectively, in any manner that the Depositary may deem practicable for
accomplishing such distribution, net of expenses of the Depositary; provided,
however, that, if in the opinion of the Depositary or its counsel, it cannot
cause such securities or property to be distributed or such distribution cannot
be made proportionately among the Holders entitled thereto, or if for any other
reason (including without limitation any requirement (i) that the Bank, the
Depositary or the Custodian withhold an amount on account of taxes or other
governmental charges or (ii) that under applicable securities or exchange
control regulations or law such securities must be registered under the
Securities Act or other law in order to be distributed to Holders), the
Depositary deems all or any portion of such distribution not to be practicable,
the Depositary shall determine a method of effecting such distribution or paying
such taxes or governmental charges and may rely on such advice, which method may
include, but not be limited to, the sale (at public or private sale) of the
securities or property thus received, or any part thereof, and the distribution
of the net proceeds of any such sale (net of taxes, fees and expenses of the
Depositary set forth in Section 5.09 or in Exhibit B of the Deposit Agreement)
by the Depositary to the Holders entitled thereto as in the case of a
distribution received in cash.
Whenever the Bank intends to make a distribution payable at the election
of the holders of Shares in cash or in additional Shares, the Bank shall give
notice thereof to the Depositary at least thirty (30) days prior to the proposed
distribution stating whether or not it wishes such elective distribution to be
made available to Holders of ADSs. Upon timely receipt of notice indicating that
the Bank wishes such elective distribution to be made available to Holders of
ADSs, the Depositary shall consult with the Bank to determine, and the Bank
shall assist the Depositary in its determination, whether it is lawful and
reasonably practicable to make such elective distribution available to the
Holders of ADSs. The Depositary shall make such elective distribution available
A-17
to Holders only if (i) the Bank shall have timely requested that the elective
distribution be made available to Holders, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.07 of the Deposit Agreement. If the above conditions are not
satisfied, the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in Brazil in
respect of the Shares for which no election is made, either (X) cash upon the
terms described in Section 4.02 of the Deposit Agreement or (Y) additional ADSs
representing such additional Shares upon the terms described in Section 4.03 of
the Deposit Agreement. If the above conditions are satisfied, the Depositary
shall establish an ADS Record Date (on the terms described in Section 4.09 of
the Deposit Agreement) and establish procedures to enable Holders to elect the
receipt of the proposed distribution in cash or in additional ADSs. The Bank
shall assist the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed distribution (X) in cash,
the distribution shall be made upon the terms described in Section 4.02 of the
Deposit Agreement, or (Y) in ADSs, the distribution shall be made upon the terms
described in Section 4.03 of the Deposit Agreement. Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to Holders a
method to receive the elective distribution in Shares (rather than ADSs). There
can be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
(15) Fixing of Record Date. Whenever the Depositary shall receive notice
of the fixing of a record date by the Bank for the determination of holders of
Deposited Securities entitled to receive any cash dividend or other cash
distribution or any distribution other than cash, or Shares, any rights to be
issued with respect to the Deposited Securities, or other distribution, or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it necessary or
convenient in connection with the giving of any notice, solicitation of any
consent or any other matter, the Depositary shall, after consultation with the
Bank, fix a record date for the determination of the Holders of Receipts (which,
to the extent practicable; shall be the same corresponding record date for
Shares or other Deposited Securities set by the Bank) who shall be entitled to
receive such dividend, distribution rights or the net proceeds of the sale
thereof, to give instructions for the exercise of voting rights at any such
meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each American
Depositary Share. Subject to the provisions of Sections 4.02 through 4.08 of the
Deposit Agreement and to the other terms and conditions of this Receipt and the
Deposit Agreement, the Holders of Receipts at the close of business in New York
on such record date shall be entitled to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively, or to give such voting
instructions, to receive such notice or solicitation, or otherwise take action.
A-18
(16) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall, in accordance with Section 4.9 of the Deposit
Agreement, fix the ADS Record Date in respect of such meeting for the giving of
instructions for voting or such consent or proxy. The Depositary shall, if
requested in writing in a timely manner (which notice shall have been received
by the Depositary at least 20 days prior to such vote or meeting or the
Depositary shall have no obligation to so notify Holders hereunder) by the Bank
and at the Bank's expense, mail to Holders: (a) such notice of meeting, (b) a
statement that the Holders at the close of business on the specified ADS Record
Date will be entitled, subject to any applicable law, the Bank's Charter and the
provisions of or governing Deposited Securities (which provisions, if any, shall
be summarized in pertinent part by the Bank), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Holder's American Depositary Shares and
(c) a brief statement as to the manner in which such instructions may be given.
Upon the receipt of instruction of a Holder of American Depositary Shares as of
the ADS 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 applicable law and the provisions of the Bank's Charter and the
provisions of the Deposited Securities, to vote or cause the Custodian to vote
the Shares and/or other Deposited Securities represented by American Depositary
Shares in accordance with the instructions set forth in such request.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders. Shares or
other Deposited Securities represented by American Depositary Shares for which
no specific voting instructions are received by the Depositary from the Holder
shall not be voted.
(17) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Bank or to which it is a party,
any securities which shall be received by the Depositary or a Custodian in
exchange for, or in conversion of or replacement or otherwise in respect of,
such Deposited Securities shall be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence American Depositary Shares
representing the right to receive such additional securities. Alternatively, the
Depositary may, with the Bank's approval, and shall, if the Bank shall so
request, subject to the terms of the Deposit Agreement and receipt of an opinion
of counsel to the Bank satisfactory to the Depositary that such distributions
are not in violation of any applicable laws or regulations, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in this Exhibit A to the Deposit
Agreement, specifically describing such new Deposited Securities or corporate
change. The Bank agrees to, jointly with the Depositary, amend the Registration
A-19
Statement on Form F-6 as filed with the Commission to permit the issuance of
such new Receipts. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, and with the Bank's approval, shall if the Bank requests,
subject to receipt of an opinion of Bank's counsel satisfactory to the
Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem practicable and shall allocate the net
proceeds of such sales (net of (a) fees and charges of, and expenses incurred by
the Depositary and (b) taxes) for the account of the Holders otherwise entitled
to such securities upon an averaged or other practicable basis without regard to
any distinctions among such Holders and distribute the net proceeds so allocated
to the extent practicable as in the case of a distribution received in cash
pursuant to Section 4.02 of the Deposit Agreement. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or
practicable to make such securities available to Holders in general or any
Holder or Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such securities.
(18) Indemnification. The Bank agrees to indemnify the Depositary, the
Custodian and any of their respective directors, officers, employees, agents and
Affiliates against, and hold each of them harmless from, any loss, liability,
tax, charge or expense of any kind whatsoever (including, but not limited to,
the reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares or other
Deposited Securities, as the case may be, or any offering documents in respect
thereof or (b) out of acts performed or omitted, including but not limited to
any delivery by the Depositary on behalf of the Bank of information regarding
the Bank, in connection with the Deposit Agreement, the Receipts, the American
Depositary Shares, the Shares or any Deposited Securities, as the same may be
amended, modified or supplemented from time to time, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates, except to the extent such loss, liability,
tax, charge or expense is due to negligence or bad faith of any of them, or (ii)
by the Bank or any of its directors, officers, employees, agents and Affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which may arise out of any Pre-Release Transaction (as
defined in paragraph (24) hereof and Section 5.10 of the Deposit Agreement)
other than a Pre-Release Transaction entered into at the request of the Bank.
The Depositary agrees to indemnify the Bank and its directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any loss, liability, charge or expense of any kind whatsoever (including, but
not limited to, the reasonable fees and expenses of counsel) which may arise out
of acts performed or omitted by the Depositary or any of its directors,
officers, employees or Affiliates, including but not limited to, any delivery by
the Bank on behalf of the Depositary of information regarding the Depositary in
connection with the Deposit Agreement, as the same may be amended, modified or
supplemented from time to time, the Receipts, the American Depositary Shares,
the Shares or any Deposited Securities, in any such case, due to the negligence
or bad faith of the Depositary or any of its directors, officers, employees or
Affiliates.
A-20
The obligations set forth in this paragraph (18) shall survive the
termination of the Deposit Agreement and the succession or substitution of any
party hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this paragraph (18) and Section
5.08 of the Deposit Agreement) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which defense shall be reasonable in the circumstances. No indemnified person
shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
(19) Liability of the Bank and the Depositary. Neither the Depositary not
the Bank nor any, its controlling persons, directors, employees, agents or
Affiliates shall incur any liability to any Holder or other person, if, by
reason of any provision of any present or future law or regulation of the United
States, Brazil or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Charter, or provisions of or governing any Deposited
Securities, or by reason of any act of God, war or other circumstance beyond its
control, the Depositary, its controlling persons or its agents or the Bank or
its agents shall be prevented, or forbidden from or subjected to any civil or
criminal penalty or, restraint on account of, or delayed in, doing or performing
any act or thing which by the terms of the Deposit Agreement it is provided
shall be done or performed; nor shall the Depositary, its controlling persons or
its agents or the Bank, its controlling person or its agents incur any liability
to any Holder or other person by reason of any non-performance or delay, caused
as aforesaid, in performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement or in the Charter or provisions of or governing Deposited
Securities. Where, by the terms of a distribution pursuant to Section 4.02,
4.03, or 4.04 of the Deposit Agreement, or an offering or distribution pursuant
to Section 4.05, 4.06, 4.11 or 5.07 of, the Deposit Agreement or in the Charter,
or for any other reason, such distribution or offering may not be made available
to Holders, or some of them, and the Depositary may not dispose of such
distribution or offering on behalf of such Holders and make the net proceeds
available to such Holders, then the Depositary shall not make such distribution
or offering, and shall allow any such rights, if applicable, to lapse. Neither
the Depositary nor the Bank shall incur any consequential or punitive damages
for any breach of the terms of this Deposit Agreement. Each of the Bank, and its
agents, and its agents assumes no obligation and shall be subject to no
liability under the Deposit Agreement or this Receipt to Holders or other
persons, except that each of the Bank and its agents agrees to perform its
obligations specifically set forth in the Deposit Agreement without negligence
or bad faith and using its reasonable judgment, without any liability on the
part of the Bank or the Depositary to any Holder. The Depositary assumes no
obligation and shall be subject to no liability under the Deposit Agreement or
A-21
the Receipts to Holders or other persons (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that the Depositary agrees to perform its obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
and the Bank undertake to perform such duties and only such duties as are
specifically set forth in the Deposit Agreement, and no implied covenants or
obligations will be read into the Deposit Agreement against the Depositary or
the Bank or their respective agents. Without limitation of the foregoing,
neither the Depositary, its controlling persons, nor any of its agents, nor the
Bank, its controlling persons, nor any of its agents shall be (a) under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of this Receipt
that in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary), or (b) liable for any action or inaction by it in reliance upon the
advice of or information from legal counsel (including internal legal counsel),
accountants, any person presenting Shares for deposit, any Holder or any other
person believed by it in good faith to be competent to give such advice or
information. The Depositary, its controlling persons, its agents, any Custodian
and the Bank, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request, or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, for the
manner in which any such vote is cast or the effect of any such vote provided
that any such action or omission is in good faith and in accordance with the
terms of the Deposit Agreement.
(20) Resignation And Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of its election so to do delivered to the
Bank, such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Bank, (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.02 of the Deposit Agreement) or (ii)
upon the appointment by the Bank 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 Bank by written notice of such removal which notice shall
be effective on the earlier of (i) the 60th day after delivery thereof to the
Depositary, (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.02 of the Deposit Agreement) or (ii) upon the
appointment by the Bank of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. In case at any time the
Depositary acting hereunder shall resign or be removed, the Bank 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 Bank an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor, but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Bank shall, (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, (ii) duly assign, transfer and deliver all right, title
and interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
A-22
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(21) Amendment Supplement. The form of the Receipts in respect of the
Shares and any provisions of the Deposit Agreement may at any time and from time
to time be amended or supplemented by written agreement between the Bank and the
Depositary in any respect which they may deem necessary or desirable without the
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any applicable fees or charges (other than transfer and
registration fees, fees in connection with foreign exchange control regulations,
and taxes and other governmental charges, delivery and other such expenses), or
which shall otherwise prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 60 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Bank and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any applicable fees, or charges to be borne by Holders, shall be deemed
not to prejudice any substantial rights of Holders or Beneficial Owners. Every
Holder and Beneficial Owner at the time any amendment or supplement so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment or supplement and to be bound by the Deposit Agreement
and the applicable Receipt(s) as amended or supplemented thereby. In no event
shall any amendment or supplement impair the right of the Holder to surrender
such Receipt and receive therefor the Deposited Securities represented thereby,
except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement to ensure compliance therewith, the Bank and the Depositary may amend
or supplement the Deposit Agreement and the Receipt at any time in accordance
with such changed laws, rules and 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 with such laws, rules and regulations.
(22) Termination. The Depositary shall, at any time at the written
direction of the Bank, terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. If 60 days shall
have expired after (i) the Depositary shall have delivered to the Bank a written
notice of its election to resign, or (ii) the Bank shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either case
a successor depositary shall not have been appointed and accepted its
appointment as provided in paragraph (20) hereof and Section 5.04 of the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed for such termination. On and after the date of
A-23
termination of the Deposit Agreement, the Holder of this Receipt will, upon
surrender of such Receipt at the Principal Office of the Depositary, upon the
payment of the applicable fees and charges of the Depositary for the surrender
of Receipts referred to in paragraph (2) hereof and Section 2.06 of the Deposit
Agreement and subject to applicable laws and regulations and to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to it or upon its order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.06 of the Deposit Agreement, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, or charging, as the case may be, in each case
the applicable fees and charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may and intends to
sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement with respect to the
Receipts and the Shares, Deposited Securities and American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case the applicable fees and charges of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder in accordance with the terms and conditions of the Deposit Agreement
and any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement as to Receipts, the Bank shall be
discharged from all obligations under the Deposit Agreement as to the Receipts
and the Shares, Deposited Securities and American Depositary Shares except for
its obligations to the Depositary under paragraph (10) and (18) hereof, and
Sections 5.08 and 5.09 of the Deposit Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the Bank and the
Depositary have each agreed that it will not exercise any rights it has under
the Deposit Agreement or this Receipt to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, Section I A(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
A-24
(24) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (24), the Depositary and its agents, on
their own behalf, may own and deal in any class of securities of the Bank and
its Affiliates and in Receipts. The Depositary may issue Receipts against
evidence of rights to receive Shares from the Bank, any agent of the Bank or any
custodian, registrar, transfer agent, clearing agency or other entity involved
in ownership or transaction records in respect of the Shares. Such evidence of
rights shall consist of written blanket or specific guarantees of ownership of
Shares furnished on behalf of the holder thereof. In its capacity as Depositary,
the Depositary shall not lend Shares or Receipts; provided, however, that the
Depositary may (i) issue Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt and cancellation of Receipts pursuant to Section 2.06 of the Deposit
Agreement, including Receipts which were issued under (i) above but for which
Shares may not have been received (each such transaction a "Pre-Release
Transaction"). The Depositary may receive Receipts in lieu of Shares under (i)
above and receive Shares in lieu of Receipts under (ii) above. Each such Pre
Release Transaction will be (a) accompanied by or subject to a written agreement
whereby the person or entity (the "Applicant") to whom Receipts or Shares are to
be delivered (w) represents that at the time of the Pre-Release Transaction the
Applicant or its customer owns the Shares or Receipts that are to be delivered
by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the
Depositary as owner of such Shares or Receipts in its records and to hold such
Shares or Receipts in trust for the Depositary for the benefit of Holders until
such Shares or Receipts are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or Receipts and (z) agrees to any additional
restrictions or requirements that the Depositary deems appropriate, (b) at all
times fully collateralized (marked to market daily) with cash, United States
government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of Receipts and Shares involved in such Pre-Release Transactions at any
one time to thirty percent (30%) of the Receipts outstanding (without giving
effect to Receipts outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of Receipts and Shares involved in Pre-Release Transactions with any
one person on a case by case basis as it deems appropriate. The Depositary shall
cease conducting Pre-Release Transactions if and when requested in writing by
the Bank. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not the earnings thereon, shall be for the benefit of the
Holders (other than the Applicant).
A-25
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfers) unto ____________ whose taxpayer identification number is
____________ and whose address including postal zip code ____________, is the
within Receipt and all rights and interests represented thereby, and hereby
irrevocably constitutes and appoints ____________ attorney-in-fact to transfer
said Receipt on the books of the Depositary, with full power of substitution in
the premises.
Dated:_____________________ Name:__________________________
By:____________________________
Title:_________________________
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person executing
the endorsement must give his full title
in such capacity and proper evidence of
authority to act in such capacity, if not
on file with the Depositary, must be
forwarded with this Receipt.
All endorsements or assignments of
Receipts must be guaranteed by a member
of a Medallion Signature Program approved
by the Securities Transfer Association
Inc.
SIGNATURE GUARANTEED
______________________________
A-26
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
----------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
----------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Shares (excluding fraction thereof) issued. or person receiving ADSs.
issuances contemplated by
paragraphs (3)(b) and (5)
below).
----------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or making
Securities, property and fraction thereof) surrendered. withdrawal.
cash against surrender of
ADSs.
----------------------------------------------------------------------------------------------------------------
(3) Distribution of (a) cash No fee, so long as prohibited by Person to whom distribution is made.
dividend or (b) ADSs the exchange upon which the ADSs
pursuant to stock dividends are listed. If the charging of
(or other free distribution such fee is not prohibited, the
of stock). fees specified in (1) above shall
be payable in respect of a
distribution of ADSs pursuant to
stock dividends (or other free
distribution of stock) and the fees
specified in (4) below shall be
payable in respect of distributions
of cash.
----------------------------------------------------------------------------------------------------------------
(4) Distribution of cash proceeds Up to $2.00 per 100 ADSs (or Person to whom distribution is made.
(i.e., upon sale of rights fraction thereof) held.
and other entitlements).
----------------------------------------------------------------------------------------------------------------
(5) Distribution of ADSs pursuant Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
to exercise of rights to fraction thereof) issued.
purchase additional ADSs.
----------------------------------------------------------------------------------------------------------------
In addition, Holders will pay (i) taxes (including applicable interest and
penalties) and other governmental charges, (ii) such registration fees as may
from time to time be in effect for the registration of transfers of Shares
generally on the share register of the Bank or its appointed agent for the
registration of transfer and accordingly applicable to transfers of Shares to
the name of the Depositary or its nominee or a Custodian or its nominee or the
person making a withdrawal, on the making of deposits pursuant to Section 2.02
or withdrawals pursuant to Section 2.06 of this Deposit Agreement, (iii) such
cable, telex and facsimile transmission and delivery expenses as are expressly
provided in this Deposit Agreement to be at the expense of persons depositing or
withdrawing Shares or Holders and Beneficial Owners of ADSs, (iv) such
applicable fees, customary expenses and charges as are incurred by the
Depositary in the conversion of Foreign Currency pursuant to Section 4.08 of the
Deposit Agreement, (v) such fees and expenses as are incurred by the Depositary
in connection with compliance with exchange control regulations and other
regulatory requirements applicable to Shares, Deposited Securities, ADSs and
ADRs; and (vi) such fees and expenses as are incurred by the Depositary, if any,
in delivery of Deposited Securities.
The Bank after consultation and agreement between the Depositary and the
Bank as to the amount and nature of any other charges, will pay those other
applicable fees and charges of the Depositary and those of any Registrar, if
any, plus reasonable out-of-pocket expenses in accordance with written
agreements entered into between the Depositary and the Bank from time to time.