BRMALLS PARTICIPAÇÕES S.A. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of November 21, 2008
BRMALLS
PARTICIPAÇÕES S.A.
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of November 21, 2008
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)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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1
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(d)
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Custodian
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1
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(e)
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Deliver,
execute, issue et al.
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1
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(f)
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Delivery
Order
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1
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(g)
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Deposited
Securities
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1
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(h)
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Direct
Registration System
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1
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(i)
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Holder
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1
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(j)
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Securities
Act of 1933
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1
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(k)
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Securities
Exchange Act of 1934
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1
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(l)
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Shares
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1
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(m)
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Transfer
Office
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1
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(n)
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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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TESTIMONIUM
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7
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7
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SIGNATURES
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EXHIBIT
A
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Page
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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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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FORM
OF REVERSE OF ADR
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A-7
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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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(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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(19) Waiver
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A-10
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DEPOSIT
AGREEMENT dated as of November 21, 2008 (the "Deposit Agreement") among BRMALLS
PARTICIPAÇÕES S.A. 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. The parties hereto agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder. ADRs may
be
either in physical certificated form or Direct Registration ADRs. ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs (as hereinafter defined), shall be substantially in the form
of Exhibit A annexed hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded on the Direct Registration System.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding upon the parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents the right to receive two 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.
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(e)
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The
terms "deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
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"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.
1
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(h)
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"Direct
Registration System"
means the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company
("DTC") and utilized by the Depositary pursuant to which the Depositary
may record the ownership of ADRs without the issuance of a certificate,
which ownership shall be evidenced by periodic statements issued
by the
Depositary to the Holders entitled thereto. For purposes hereof,
the
Direct Registration System shall include access to the Profile
Modification System maintained by DTC which provides for automated
transfer of ownership between DTC and the
Depositary.
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(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.
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.
2
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
Depositary, the Custodian or a nominee of either 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 Depositary, the Custodian or a nominee of either, to the extent such
registration is practicable, at the cost and expense of the person making such
deposit (or for whose benefit such deposit is made) and shall obtain evidence
satisfactory to it of such registration. Deposited Securities shall be held
by
the Custodian for the account and to the order of the Depositary at such place
or places and in such manner as the Depositary shall determine. Deposited
Securities may be delivered by the Custodian to any person only under the
circumstances expressly contemplated in this Deposit Agreement. To the extent
that the provisions of or governing the Shares make delivery of certificates
therefor impracticable, Shares may be deposited hereunder by such delivery
thereof as the Depositary or the Custodian may reasonably accept, including,
without limitation, by causing them to be credited to an account maintained
by
the Custodian for such purpose with the Company or an accredited intermediary,
such as a bank, acting as a registrar for the Shares, together with delivery
of
the documents, payments and Delivery Order referred to herein to the Custodian
or the Depositary.
The
Depositary and the Custodian shall comply with reasonable 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 reasonably 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.
3
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.
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. Notwithstanding
the foregoing, without the appropriate Brazilian approvals, however, no more
than one Custodian shall serve hereunder at any given time. 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.
4
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.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by 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 90 days prior written notice of such
removal to the Depositary, such removal to take effect the later of (i) the
90th
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
45-day period (in the case of resignation) or 90-day period (in the case of
removal) 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, 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.
5
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.
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,
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.
6
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 ADRs 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:
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(a)
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JPMorgan
Chase Bank, N.A.
|
Four
▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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(b)
|
BRMalls
Participações SA
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▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
701
(parte), Bloco II
CEP
▇▇▇▇▇-▇▇▇
▇▇▇
▇▇
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇
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.
7
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 National
Registered Agents, Inc., 875 Avenue of the Americas, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, 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. 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 Deposit Agreement may be instituted by the Depositary or any Holder
in
any competent court in the Federative Republic of Brazil.
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
Deposit 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.
8
EACH
PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
9
IN
WITNESS WHEREOF, BRMALLS PARTICIPAÇÕES S.A. 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.
| BRMALLS PARTICIPAÇÕES S.A. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
| JPMORGAN CHASE BANK, N.A. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: | ||
10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
|
|
No.
of ADSs:
|
________
Number
_______________
Each
ADS
represents
Two
Shares
CUSIP:
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
BRMALLS
PARTICIPAÇÕES S.A.
(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 two
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 BRMalls Participações SA, a corporation
organized under the laws of the Federative Republic of Brazil (the "Company"),
deposited under the Deposit Agreement dated as of November 21, 2008 (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 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) 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 in its capacity as such and for the
benefit of Holders and beneficial owners and 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 30% of all ADSs (excluding those
evidenced by Pre-released ADRs), provided,
however,
that
the Depositary reserves the right to change or disregard such limit from time
to
time as it deems appropriate pursuant to relevant market conditions. 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
("Restricted Securities") unless at the time of deposit the requirements of
paragraphs (c), (e), (f) and (h) of Rule 144 shall not apply and such Shares
may
be freely transferred and may otherwise be offered and sold freely in the United
States or (B) have been registered under the Securities Act of 1933. To the
extent the person depositing Shares is an Aaffiliate@
of the
Company as such term is defined in Rule 144, the person also represents and
warrants that upon the sale of the ADSs, all of the provisions of Rule 144
which
enable the Shares to be freely sold (in the form of ADSs) will be fully complied
with and, as a result thereof, all of the ADSs issued in respect of such Shares
will not be on the sale thereof, Restricted Securities. 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.
A-2
(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.
(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. 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.
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. The Company
may
from time to time request Holders or beneficial owners of an interest in ADRs
to
provide information as to the capacity in which such Holders own or owned ADRs
and regarding the identity of any other persons then or previously having a
beneficial interest in such ADRs and the nature of such interest and various
other matters. Each Holder agrees to provide any information requested by the
Company or the Depositary pursuant to this paragraph (6). The Depositary agrees
to comply with reasonable written instructions received from time to time from
the Company requesting that the Depositary forward any such requests to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
A-4
(7)
Charges
of Depositary. The
Depositary may collect from (i) each person to whomADSs
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.$0.05 or less per ADS for any Cash distribution made pursuant to
the
Deposit Agreement, (ii) 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)
an
aggregate fee of U.S.$0.05 per ADS per calendar year (or portion thereof) for
services performed by the Depositary in administering the ADRs (which fee may
be
charged on a periodic basis during each calendar year and shall be assessed
against Holders as of the record date or record dates set by the Depositary
during 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 publishes
information in English required to maintain the exemption from registration
under Rule 12g3-2(b) under the Securities Exchange Act of 1934 on its Internet
Web site (▇▇▇.▇▇▇▇▇▇▇.▇▇▇.▇▇) or through an electronic information delivery
system generally available to the public in its primary trading
market.
The
Depositary does not assume any duty to determine if the Company is complying
with the current requirements of Rule 12g3-2(b) under the Securities Exchange
Act of 1934 or to take any action if the Company is not complying with those
requirements.
(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 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). (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.
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(11)
Record
Dates.
The
Depositary may, 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, 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. There
is
no guarantee that Holders generally or any Holder in particular will receive
the
notice described above with sufficient time to enable such Holder to return
any
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 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.
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(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, regulation ,
fiat,
order or decree 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 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 shall not be liable for the acts
or
omissions made by any securities depository, clearing agency or settlement
system in the Federative Republic of Brazil in connection with or arising out
of
book-entry settlement of Deposited Securities or otherwise.
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. None of the
Depositary, the Custodian or the Company shall be liable for the failure by
any
Holder or beneficial owner to obtain the benefits of credits on the basis of
non-U.S. tax paid against such Holder=s
or
beneficial owner=s
income
tax liability. The Depositary and the Company shall not incur any liability
for
any tax consequences that may be incurred by Holders and beneficial owners
on
account of their ownership of the ADRs or ADSs. The Company has agreed to
indemnify the Depositary and its agents under certain circumstances and the
Depositary has agreed to indemnify the Company under certain circumstances.
Neither the Company nor the Depositary nor any of their respective agents shall
be liable to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages. No disclaimer of liability under
the
Securities Act of 1933 is intended by any provision hereof.
A-9
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by written notice of its election 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 90 days prior written notice of such
removal, to become effective upon the later of (i) the 90th 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.
(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 45 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 90th
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 in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary and its agents.
A-10
(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 in
its
sole discretion may deem necessary or appropriate 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.
(19)
Waiver. EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT
OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR
THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
A-11