PETRÓLEO BRASILEIRO S. A. - PETROBRAS AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
PETRÓLEO
BRASILEIRO S. A. - PETROBRAS
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of January , 2007
TABLE
OF CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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Section
1.Certain Definitions
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(a)
ADR Register
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1
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(b)
ADRs; Direct Registration ADRs
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1
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(c)
ADS
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1
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(d)
Custodian
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1
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(e)
Deliver, execute, issue et al.
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1
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(f)
Delivery Order
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1
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(g)
Deposited Securities
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1
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(h)
Direct Registration System
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1
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(i)
Holder
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1
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(j)
Securities Act of 1933
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1
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(k)
Securities Exchange Act of 1934
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1
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(l)
Shares
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1
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(m)
Transfer Office
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1
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(n)
Withdrawal Order
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1
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Section
2. ADRs
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2
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Section
3. Deposit of Shares
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2
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Section
4. Issue of ADRs
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2
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Section
5. Distributions on Deposited Securities
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3
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Section
6. Withdrawal of Deposited Securities
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3
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Section
7. Substitution of ADRs
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4
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Section
8.Cancellation and Destruction of ADRs
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4
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Section
9. The Custodian
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4
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Section
10.Co-Registrars and Co-Transfer Agents
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4
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Section
11. Lists of Holders.
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4
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Section
12. Depositary's Agents
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5
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Section
13. Successor Depositary
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5
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Section
14. Reports5
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Section
15. Additional Shares
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5
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Section16.
Indemnification
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5
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Section
17. Notices
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6
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Section
18. Miscellaneous
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6
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Section
19. Consent to Jurisdiction
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6
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Section
20. Amendment and Restatement of Old Deposit Agreement
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6
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TESTIMONIUM
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7
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SIGNATURES
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7
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-
i -
EXHIBIT
A
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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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A-9
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(16)
Amendment
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A-9
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(17)
Termination
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A-10
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(18)
Appointment
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A-10
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ii -
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of January , 2007 (the "Deposit
Agreement") among PETRÓLEO BRASILEIRO S. A. - PETROBRAS and its successors (the
"Company"), JPMORGAN CHASE BANK, N.A., as depositary hereunder (the
"Depositary"), and all holders from time to time of American Depositary Receipts
issued hereunder ("ADRs") evidencing American Depositary Shares ("ADSs")
representing deposited Shares (defined below). The Company hereby appoints
the
Depositary as depositary for the Deposited Securities and hereby authorizes
and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. All capitalized terms used herein have the meanings ascribed
to them in Section 1 or elsewhere in this Deposit Agreement.
W
I T N E
S S E T H
WHEREAS,
the Company and Citibank, N.A. entered into a Deposit Agreement dated as of
[February 1, 2001][July 14, 2000], as amended (the "Old Deposit Agreement")
to
provide for the deposit of Shares of the Company with Citibank, N.A. or with
the
Custodian as agent of Citibank, N.A. for the purposes set forth in such Old
Deposit Agreement, for the creation of American depositary shares representing
the Shares so deposited and for the execution and delivery of American
depositary receipts ("Old Receipts") evidencing the American depositary
shares;
WHEREAS,
pursuant to the terms of Section 5.5 of the Old Deposit Agreement, the Company
has removed Citibank, N.A. as depositary and has appointed JPMorgan Chase Bank,
N.A., as successor depositary thereunder; and
WHEREAS,
the Company and JPMorgan Chase Bank, N.A., in its capacity as successor
depositary under the Old Deposit Agreement, now wish to amend and restate the
Old Deposit Agreement and the Old Receipts;
NOW
THEREFORE, in consideration of the premises, subject to Section 20 hereof,
the
parties hereto hereby amend and restate the Old Deposit Agreement and the Old
Receipts in their entirety as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder. ADRs may
be
either in physical certificated form or Direct Registration ADRs. ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs (as hereinafter defined), shall be substantially in the form
of Exhibit A annexed hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded on the Direct Registration System.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires. The form of ADR is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding upon the parties hereto.
1
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents the right to receive four Shares and a pro rata
share in any other Deposited Securities.
(d) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the context
requires) and any additional or substitute Custodian appointed pursuant to
Section 9.
(e)
The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an electronic transfer or transfers in the Direct Registration
System, and, when used with respect to ADRs in physical certificated form,
shall
refer to the physical delivery, execution, issuance, registration, surrender,
transfer or cancellation of certificates representing the ADRs.
(f) "Delivery
Order"
is
defined in Section 3.
(g) "Deposited
Securities"
as of
any time means all Shares at such time deposited under this Deposit Agreement
and any and all other Shares, securities, property and cash at such time held
by
the Depositary or the Custodian in respect or in lieu of such deposited Shares
and other Shares, securities, property and cash.
(h)
"Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the Depositary pursuant to which the Depositary may record the
ownership of ADRs without the issuance of a certificate, which ownership shall
be evidenced by periodic statements issued by the Depositary to the Holders
entitled thereto. For purposes hereof, the Direct Registration System shall
include access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the
Depositary.
(i) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(j) "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 preferred shares of the Company, and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at
the discretion of the Depositary in accordance with its customary practices
in
its American depositary receipt business, or at the request of the Company
typewritten and photocopied on plain or safety paper, and shall be substantially
in the form set forth in the form of ADR, with such changes as may be required
by the Depositary or the Company to comply with their obligations hereunder,
any
applicable law, regulation or usage or to indicate any special limitations
or
restrictions to which any particular ADRs are subject. ADRs may be issued in
denominations of any number of ADSs. ADRs in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized officer
of the Depositary shall bind the Depositary, notwithstanding that such officer
has ceased to hold such office prior to the delivery of such ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the form of ADR to
the
contrary, ADSs shall be evidenced by Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the form of ADR, regardless of whether their ADRs are Direct Registration
ADRs or certificated ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or the Custodian
may require the following in form satisfactory to it: (a) a written order
directing the Depositary to issue to, or upon the written order of, the person
or persons designated in such order a Direct Registration ADR or ADRs evidencing
the number of ADSs representing such deposited Shares (a "Delivery Order");
(b)
proper endorsements or duly executed instruments of transfer in respect of
such
deposited Shares; (c) instruments assigning to the Custodian or its nominee
any
distribution on or in respect of such deposited Shares or indemnity therefor;
and (d) proxies entitling the Custodian to vote such deposited Shares. As soon
as practicable after the Custodian receives Deposited Securities pursuant to
any
such deposit or pursuant to paragraph (10) or (13) of the form of ADR, the
Custodian shall present such Deposited Securities for registration of transfer
into the name of the Custodian or its nominee, to the extent such registration
is practicable, at the cost and expense of the person making such deposit (or
for whose benefit such deposit is made) and shall obtain evidence satisfactory
to it of such registration. Deposited Securities shall be held by the Custodian
for the account and to the order of the Depositary at such place or places
and
in such manner as the Depositary shall determine. Deposited Securities may
be
delivered by the Custodian to any person only under the circumstances expressly
contemplated in this Deposit Agreement. To the extent that the provisions of
or
governing the Shares make delivery of certificates therefor impracticable,
Shares may be deposited hereunder by such delivery thereof as the Depositary
or
the Custodian may reasonably accept, including, without limitation, by causing
them to be credited to an account maintained by the Custodian for such purpose
with the Company or an accredited intermediary, such as a bank, acting as a
registrar for the Shares, together with delivery of the documents, payments
and
Delivery Order referred to herein to the Custodian or the Depositary.
3
The
Depositary and the Custodian shall comply with written instructions from the
Company or its Brazilian counsel to maintain registration of the amount of
Deposited Securities with Banco Central do Brasil (the "Central Bank") and
to
furnish to the Central Bank and to the Comissão de Valores Mobiliários (the
"Securities Commission"), whenever required, information or documents related
to
this Deposit Agreement, the ADRs and the Deposited Securities and distributions
thereon, and may rely, and shall be fully protected in relying, on such written
instructions from the Company or its Brazilian counsel in respect of such
registration, information and documents.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary of such
deposit and of the information contained in any related Delivery Order by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the person making the deposit, by cable, telex or facsimile
transmission. After receiving such notice from the Custodian, the Depositary,
subject to this Deposit Agreement, shall properly issue at the Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested and evidencing the aggregate ADSs to which such person
is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its discretion that any distribution
pursuant to paragraph (10) of the form of ADR is not practicable with respect
to
any Holder, the Depositary may make such distribution as it so deems
practicable, including the distribution of foreign currency, securities or
property (or appropriate documents evidencing the right to receive foreign
currency, securities or property) or the retention thereof as Deposited
Securities with respect to such Holder's ADRs (without liability for interest
thereon or the investment thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal of the Deposited
Securities represented by the ADSs evidenced thereby, the Depositary may require
proper endorsement in blank of such ADR (or duly executed instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited Securities represented by the ADSs evidenced
by such ADR to be withdrawn and delivered to, or upon the written order of,
any
person designated in such order (a "Withdrawal Order"). Directions from the
Depositary to the Custodian to deliver Deposited Securities shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder, by cable, telex or facsimile transmission. Delivery
of
Deposited Securities may be made by the delivery of certificates (which, if
required by law shall be properly endorsed or accompanied by properly executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such Holder or as ordered by such Holder in any Withdrawal Order)
or by such other means as the Depositary may deem practicable, including,
without limitation, by transfer of record ownership thereof to an account
designated in the Withdrawal Order maintained either by the Company or an
accredited intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
4
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration ADR in exchange
and substitution for any mutilated certificated ADR upon cancellation thereof
or
in lieu of and in substitution for such destroyed, lost or stolen certificated
ADR, unless the Depositary has notice that such ADR has been acquired by a
bona
fide purchaser, upon the Holder thereof filing with the Depositary a request
for
such execution and delivery and a sufficient indemnity bond and satisfying
any
other reasonable requirements imposed by the Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy ADRs in certificated form so cancelled
in
accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from time
to time appoint one or more agents to act for it as Custodian hereunder. Each
Custodian so appointed (other than JPMorgan Chase Bank, N.A.) shall give written
notice to the Company and the Depositary accepting such appointment and agreeing
to be bound by the applicable terms hereof. Any Custodian may resign from its
duties hereunder by at least 30 days written notice to the Depositary. The
Depositary may discharge any Custodian at any time upon notice to the Custodian
being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon the instruction of the Depositary, all Deposited Securities held
by it to a Custodian continuing to act.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars to register ADRs and
transfers, combinations and split-ups of ADRs and to countersign ADRs in
accordance with the terms of any such appointment and (ii) co-transfer agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer offices in addition to the Transfer Office on behalf of
the
Depositary. Each co-registrar or co-transfer agent (other than JPMorgan Chase
Bank, N.A.) shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
of
this Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and
its agents and the ADR Register, take copies thereof and require the Depositary
and its agents to supply copies of such portions of such records as the Company
may request. The Depositary or its agent shall furnish to the Company promptly
upon the written request of the Company, a list of the names, addresses and
holdings of ADSs by all Holders as of a date within seven days of the
Depositary's receipt of such request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement through
any
agent appointed by it, provided that the Depositary shall notify the Company
of
such appointment and shall remain responsible for the performance of such
obligations as if no agent were appointed.
5
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by 60 days prior
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided. The Depositary
may
at any time be removed by the Company by providing no less than 60 days prior
written notice of such removal to the Depositary, such removal to take effect
the later of (i) the 60th
day
after such notice of removal is first provided and (ii) the appointment of
a
successor depositary and its acceptance of such appointment as hereinafter
provided. Notwithstanding the foregoing, if upon the resignation or removal
of
the Depositary a successor depositary is not appointed within the applicable
60
day period as specified in paragraph (17) of the form of ADR, then the
Depositary may elect to terminate this Deposit Agreement and the ADR and the
provisions of said paragraph (17) shall thereafter govern the Depositary’s
obligations hereunder. In case at any time the Depositary acting hereunder
shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office
in
the Borough of Manhattan, The City of New York. Every successor depositary
shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed except as required by law, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor. The predecessor depositary, only upon payment of all sums due
to it
and on the written request of the Company, shall (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than its rights to indemnification and fees owing,
each of which shall survive any such removal and/or resignation), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of
the
Holders of all outstanding ADRs. Any such successor depositary shall promptly
mail notice of its appointment to such Holders. Any bank or trust company into
or with which the Depositary may be merged or consolidated, or to which the
Depositary shall transfer substantially all its American depositary receipt
business, shall be the successor of the Depositary without the execution or
filing of any document or any further act.
14.
Reports.
On or
before the first date on which the Company makes any communication available
to
holders of Deposited Securities or any securities regulatory authority or stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy thereof in English or with an English translation or summary.
The Company has delivered to the Depositary, the Custodian and any Transfer
Office, a copy of all provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any affiliate of the Company
and,
promptly upon any change thereto, the Company shall deliver to the Depositary,
the Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions as so changed. The Depositary and its agents
may
rely upon the Company's delivery thereof for all purposes of this Deposit
Agreement.
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or under common control
with the Company shall issue additional Shares, rights to subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities or shall deposit any Shares under this Deposit
Agreement, except under circumstances complying in all respects with the
Securities Act of 1933. The Depositary will use reasonable efforts to comply
with written instructions of the Company not to accept for deposit hereunder
any
Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in order
to
facilitate the Company's compliance with securities laws in the United
States.
6
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary and
its
agents against any loss, liability or expense (including reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted, in
connection with the provisions of this Deposit Agreement and of the ADRs, as
the
same may be amended, modified or supplemented from time to time in accordance
herewith (i) by either the Depositary or its agents or their respective
directors, employees, agents and affiliates, except, subject to the penultimate
paragraph of this Section 16, for any liability or expense directly arising
out
of the negligence or bad faith of the Depositary, or (ii) by the Company or
any
of its directors, employees, agents or affiliates.
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of ADSs
or
the Deposited Securities, except to the extent any such liability or expense
arises out of (i) information relating to the Depositary or its agents (other
than the Company), as applicable, furnished in writing by the Depositary and
not
changed or altered by the Company expressly for use in any of the foregoing
documents or (ii) if such information is provided, the failure to state a
material fact necessary to make the information provided not
misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company
in
respect of this Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary, neither the Company nor the Depositary, nor any of their agents,
shall
be liable to the other for any indirect, special, punitive or consequential
damages (collectively "Special Damages") except (i) to the extent such Special
Damages arise from the gross negligence or willful misconduct of the party
from
whom indemnification is sought or (ii) to the extent Special Damages arise
from
or out of a claim brought by a third party (including, without limitation,
Holders) against the Depositary or its agents, except to the extent such Special
Damages arise out of the gross negligence or willful misconduct of the party
seeking indemnification hereunder
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement and the succession or substitution of any indemnified
person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice to the Depositary or the Company shall be deemed given when
first
received by it at the address or facsimile transmission number set forth in
(a)
or (b), respectively, or at such other address or facsimile transmission number
as either may specify to the other by written notice:
7
|
(a)
|
JPMorgan
Chase Bank, N.A.
Four
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
ADR Administration
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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|
(b)
|
Petróleo
Brasileiro S.A.- PETROBRAS
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇
▇▇▇
▇▇ ▇▇▇▇▇▇▇- ▇▇
▇▇▇▇▇▇
Attention:
Fax:
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18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, and their respective successors hereunder, and shall not give
any
legal or equitable right, remedy or claim whatsoever to any other person. The
Holders and owners of ADRs from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the provisions hereof. If any such
provision is invalid, illegal or unenforceable in any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument.
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding against
the
Company brought by the Depositary or any Holder, arising out of or based upon
this Deposit Agreement or the transactions contemplated hereby, may be
instituted in any state or federal court in New York, New York, and irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
also irrevocably agrees that any legal suit, action or proceeding against the
Depositary brought by the Company, arising out of or based upon this Deposit
Agreement or the transactions contemplated hereby, may only be instituted in
a
state or federal court in New York, New York. The Company has appointed its
New
York office, currently located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent (the "Authorized Agent")
upon
which process may be served in any such action arising out of or based on this
Deposit Agreement or the transactions contemplated hereby which may be
instituted in any state or federal court in New York, New York by the Depositary
or any Holder, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. The Company represents and warrants that
the
Authorized Agent has agreed to act as said agent for service of process, and
the
Company agrees to take any and all action, including the filing of any and
all
documents and instruments, that may be necessary to continue such appointment
in
full force and effect as aforesaid. Except to the extent prohibited by
applicable law, service of process upon the Authorized Agent and written notice
of such service to the Company shall be deemed, in every respect, effective
service of process upon the Company. If, for any reason, the Authorized Agent
named above or its successor shall no longer serve as agent of the Company
to
receive service of process in New York, the Company shall promptly appoint
a
successor acceptable to the Depositary, so as to serve and will promptly advise
the Depositary thereof. In the event the Company fails to continue such
designation and appointment in full force and effect, the Company hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Company at its address last specified for notices hereunder,
and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed. Notwithstanding the foregoing, any action based on this
Agreement may be instituted by the Depositary or any Holder in any competent
court in the Federative Republic of Brazil.
8
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may hereafter be entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff
or
counterclaim, from the jurisdiction of any court, from service of process,
from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect
to
its obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
20.
Amendment
and Restatement of Old Deposit Agreement.
The
Deposit Agreement amends
and restates the Old Deposit Agreement in its entirety to consist exclusively
of
the Deposit Agreement, and each Old Receipt is hereby deemed amended and
restated to substantially conform to the form of ADR set forth in Exhibit
A
annexed hereto, except that, to the extent any portion of either such amendment
and restatement would prejudice any substantial existing right of owners
of Old
Receipts, such portion shall not become effective as to such owners until
30
days after such owners shall have received notice thereof, such notice
to be
conclusively deemed given upon the mailing to such owners of notice of
such
amendment and restatement which notice contains a provision whereby such
owners
can receive a copy of the form of ADR.
9
IN
WITNESS WHEREOF, PETRÓLEO BRASILEIRO S. A. - PETROBRAS and JPMORGAN CHASE BANK,
N.A. have duly executed this Deposit Agreement as of the day and year first
above set forth and all holders of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms
hereof.
PETRÓLEO
BRASILEIRO S. A. - PETROBRAS
By:_________________________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A.
By:_________________________________
Name:
Title:
Vice President
10
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
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_____
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No.
of ADSs:
|
|
Number
|
|
|
_________
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|
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Each
ADS represents
|
|
|
Four
Shares
|
|
|
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
PREFERRED
SHARES
of
PETRÓLEO
BRASILEIRO S. A. - PETROBRAS
(Incorporated
under the laws of The Federative Republic of Brazil)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States of America , as depositary hereunder (the "Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing four
preferred shares (including the rights to receive Shares described in paragraph
(1), "Shares" and, together with any other securities, cash or property from
time to time held by the Depositary in respect or in lieu of deposited Shares,
the "Deposited Securities"), of PETRÓLEO BRASILEIRO S. A. - PETROBRAS, a
corporation organized under the laws of The Federative Republic of Brazil (the
"Company"), deposited under the Amended and Restated Deposit Agreement dated
as
of January , 2007 (as amended from time to time, the "Deposit Agreement") among
the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an
ADR
becomes a party thereto. The Deposit Agreement and this ADR (which includes
the
provisions set forth on the reverse hereof) shall be governed by and construed
in accordance with the laws of the State of New York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject to paragraph
(4), the Depositary may so issue ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form satisfactory to the Custodian; (b) rights to receive Shares
from
the Company or any registrar, transfer agent, clearing agent or other entity
recording Share ownership or transactions; or, (c) unless requested in writing
to cease doing so at least two business days prior to the proposed deposit,
other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released
ADRs
are fully collateralized (marked to market daily) with cash, government
securities or such other collateral as the Depositary deems appropriate held
by
the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient or
its
customer (a) beneficially owns such Shares, (b) assigns all beneficial right,
title and interest therein to the Depositary, (c) holds such Shares for the
account of the Depositary and (d) will deliver such Shares to the Custodian
as
soon as practicable and promptly upon demand therefor and (iii) all Pre-released
ADRs evidence not more than 20% of all ADSs (excluding those evidenced by
Pre-released ADRs). The Depositary may retain for its own account any earnings
on collateral for Pre-released ADRs and its charges for issuance thereof. At
the
request, risk and expense of the person depositing Shares, the Depositary may
accept deposits for forwarding to the Custodian and may deliver ADRs at a place
other than its office. Every person depositing Shares under the Deposit
Agreement represents and warrants that such Shares are validly issued and
outstanding, fully paid, nonassessable and free of pre-emptive rights, that
the
person making such deposit is duly authorized so to do and that such Shares
(A)
are not "restricted securities" as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the United States or (B) have been registered under the Securities
Act
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of ADRs. The Depositary will not knowingly accept for deposit
under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for
such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at, or to the extent in dematerialized
form from, the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and expense
of the Holder hereof, the Depositary may deliver such Deposited Securities
at
such other place as may have been requested by the Holder. Notwithstanding
any
other provision of the Deposit Agreement or this ADR, the withdrawal of
Deposited Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office (the
"Transfer Office"), (a) a register (the "ADR Register") for the registration,
registration of transfer, combination and split-up of ADRs, and, in the case
of
Direct Registration ADRs, shall include the Direct Registration System, which
at
all reasonable times will be open for inspection by Holders and the Company
for
the purpose of communicating with Holders in the interest of the business of the
Company or a matter relating to the Deposit Agreement and (b) facilities for
the
delivery and receipt of ADRs. The term ADR Register includes the Direct
Registration System. Title to this ADR (and to the Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed (in the case
of ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer, is transferable by delivery with the same effect as
in
the case of negotiable instruments under the laws of the State of New York;
provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this ADR is registered on the ADR Register as the absolute owner
hereof for all purposes and neither the Depositary nor the Company will have
any
obligation or be subject to any liability under the Deposit Agreement to any
holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may
be
split into other ADRs or combined with other ADRs into one ADR, evidencing
the
aggregate number of ADSs surrendered for split-up or combination, by the Holder
hereof or by duly authorized attorney upon surrender of this ADR at the Transfer
Office properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer and duly stamped
as
may be required by applicable law; provided
that the
Depositary may close the ADR Register at any time or from time to time when
deemed expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR with
a
Direct Registration ADR, or vice versa, execute and deliver a certificated
ADR
or a Direct Registration ADR, as the case may be, for any authorized number
of
ADSs requested, evidencing the same aggregate number of ADSs as those evidenced
by the certificated ADR or Direct Registration ADR, as the case may be,
substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of
any ADR, the delivery of any distribution in respect thereof, or, subject to
the
last sentence of paragraph (2), the withdrawal of any Deposited Securities,
and
from time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with respect
thereto of (i) any stock transfer or other tax or other governmental charge,
(ii) any stock transfer or registration fees in effect for the registration
of
transfers of Shares or other Deposited Securities upon any applicable register
and (iii) any applicable charges as provided in paragraph (7) of this ADR;
(b)
the production of proof satisfactory to it of (i) the identity of any signatory
and genuineness of any signature and (ii) such other information, including
without limitation, information as to citizenship, residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations, provisions of or governing Deposited Securities and terms
of
the Deposit Agreement and this ADR, as it may deem necessary or proper; and
(c)
compliance with such regulations as the Depositary may establish consistent
with
the Deposit Agreement and any regulations which the Depositary is informed
of in
writing by the Company which are deemed desirable by the Depositary, the Company
or the Custodian to facilitate compliance with any applicable rules or
regulations of the Banco Central do Brasil or Comissão de Valores Mobiliários.
The issuance of ADRs, the acceptance of deposits of Shares, the registration,
registration of transfer, split-up or combination of ADRs or, subject to the
last sentence of paragraph (2), the withdrawal of Deposited Securities may
be
suspended, generally or in particular instances, when the ADR Register or any
register for Deposited Securities is closed or when any such action is deemed
advisable by the Depositary or, in order to comply with applicable law, by
the
Company.
A-3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such
tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration, registration
of transfer, split-up or combination hereof or, subject to the last sentence
of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary may also deduct from any distributions on or in respect
of
Deposited Securities, or may sell by public or private sale for the account
of
the Holder hereof any part or all of such Deposited Securities (after attempting
by reasonable means to notify the Holder hereof prior to such sale), and may
apply such deduction or the proceeds of any such sale in payment of such tax
or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any
such sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodian will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld and owing to such authority or agency by the Depositary or the
Custodian. If the Depositary determines that any distribution in property other
than cash (including Shares or rights) on Deposited Securities is subject to
any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay such
taxes, by public or private sale, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction
of
such taxes to the Holders entitled thereto. Each Holder of an ADR or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective directors, employees, agents and affiliates against, and
hold each of them harmless from, any claims by any governmental authority with
respect to taxes, additions to tax, penalties or interest arising out of any
refund of taxes, reduced rate of withholding at source or other tax benefit
obtained.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities may require
disclosure of or impose limits on beneficial or other ownership of Deposited
Securities, other Shares and other securities and may provide for blocking
transfer, voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to comply with any reasonable Company
instructions in respect thereof. The Company reserves the right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so as to permit the Company to deal directly with the Holder thereof
as a holder of Shares and Holders agree to comply with such instructions. The
Depositary agrees to cooperate with the Company in its efforts to inform Holders
of the Company's exercise of its rights under this paragraph and agrees to
consult with, and provide reasonable assistance without risk, liability or
expense on the part of the Depositary, to the Company on the manner or manners
in which it may enforce such rights with respect to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), issuances
pursuant to a stock dividend or stock split declared by the Company, or
issuances pursuant to a merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities,
and (ii) each person surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered, reduced,
cancelled or surrendered (as the case may be). The Depositary may sell (by
public or private sale) sufficient securities and property received in respect
of Share Distributions, Rights and Other Distributions prior to such deposit
to
pay such charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company
or
an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i)
a
fee of U.S.$0.02 or less per ADS (or portion thereof) for any Cash distribution
made pursuant to the Deposit Agreement, (ii) to the extent not prohibited by
the
rules of the primary stock exchange upon which the ADSs are listed, a fee of
U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution or sale of securities pursuant to paragraph
(10) hereof, such fee being in an amount equal to the fee for the execution
and
delivery of ADSs referred to above which would have been charged as a result
of
the deposit of such securities (for purposes of this paragraph (7) treating
all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, (iv)
a
fee of U.S.$0.02 per ADS (or portion thereof) in each calendar year for the
services performed by the Depositary in administering the ADRs (which fee shall
be assessed against Holders as of the record date or dates set by the Depositary
not more than once each calendar year and shall be payable at the sole
discretion of the Depositary by billing such Holders or by deducting such charge
from one or more cash dividends or other cash distributions), and (v) such
fees
and expenses as are incurred by the Depositary (including without limitation
expenses incurred on behalf of Holders in connection with compliance with
foreign exchange control regulations or any law or regulation relating to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which
are payable by such persons or Holders), (iii) transfer or registration fees
for
the registration or transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary’s agents, including, without limitation, the Custodian, or
the agents of the Depositary’s agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the Depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
A-5
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited Securities and
any
written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to the holders of Deposited Securities, are available for inspection
by Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such communications
(or English translations or summaries thereof) to Holders when furnished by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and accordingly files certain reports with
the
United States Securities and Exchange Commission (the "Commission"). Such
reports and other information may be inspected and copied at public reference
facilities maintained by the Commission located at the date hereof at ▇▇▇ ▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary by
the
manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
By_________________________________
Authorized
Officer
The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the
extent
practicable, the Depositary will distribute to each Holder entitled thereto
on
the record date set by the Depositary therefor at such Holder's address shown
on
the ADR Register, in proportion to the number of Deposited Securities (on which
the following distributions on Deposited Securities are received by the
Custodian) represented by ADSs evidenced by such Holder's ADRs:
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(a)
Cash.
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Any
U.S. dollars available to the Depositary resulting from a cash dividend
or
other cash distribution or the net proceeds of sales of any other
distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i)
appropriate adjustments for taxes withheld, (ii) such distribution
being
impermissible or impracticable with respect to certain Holders, and
(iii)
deduction of the Depositary's expenses in (1) converting any foreign
currency to U.S. dollars by sale or in such other manner as the Depositary
may determine to the extent that it determines that such conversion
may be
made on a reasonable basis, (2) transferring foreign currency or
U.S.
dollars to the United States by such means as the Depositary may
determine
to the extent that it determines that such transfer may be made on
a
reasonable basis, (3) obtaining any approval or license of any
governmental authority required for such conversion or transfer,
which is
obtainable at a reasonable cost and within a reasonable time and
(4)
making any sale by public or private means in any commercially reasonable
manner. If the Company shall have advised the Depositary pursuant
to the
provisions of the Deposit Agreement that any such conversion, transfer
or
distribution can be effected only with the approval or license of
the
Brazilian government or any agency thereof or the Depositary shall
become
aware of any other governmental approval or license required therefor,
the
Depositary may, in its reasonable discretion, apply for such approval
or
license, if any, as the Company or its Brazilian counsel may reasonably
instruct in writing or as the Depositary may deem desirable including,
without limitation, Central Bank registration.
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(b)
Shares.
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(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.
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(c)
Rights.
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(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).
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A-7
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(d)
Other
Distributions.
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(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.
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Such
U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Fractional cents will be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices. Subject to the other provisions hereof and of the Deposit Agreement,
the Depositary shall cause any Cash distribution that is paid in a currency
other than U.S. dollars to be converted into U.S. dollars as promptly as
reasonably practicable under the circumstances after the receipt thereof.
(11)
Record
Dates.
The
Depositary may or shall if required, in each case after consultation with the
Company if practicable, fix a record date (which, to the extent applicable,
shall be as near as practicable to any corresponding record date set by the
Company) for the determination of the Holders who shall be responsible for
the
fee assessed by the Depositary for administration of the ADR program and for
any
expenses provided for in paragraph (7) hereof as well as for the determination
of the Holders who shall be entitled to receive any distribution on or in
respect of Deposited Securities, to give instructions for the exercise of any
voting rights, to receive any notice or to act in respect of other matters
and
only such Holders shall be so entitled or obligated.
(12)
Voting
of Deposited Securities.
Under
the Brazilian Corporate Law (Law 6404 of December 15, 1976) and the by-laws
of
the Company on the date of the Deposit Agreement, the Shares have general voting
rights only so long as the Company has failed for three consecutive fiscal
years
to pay a minimum dividend on the Shares of 25% of the Company's net profits;
otherwise the Shares have no voting rights in respect of any matters except
changes to the Company's capital structure which adversely affect the Shares.
As
soon as practicable after receipt from the Company of notice of any meeting
or
solicitation of consents or proxies of holders of Shares or other Deposited
Securities, the Depositary shall distribute to Holders a notice stating (a)
such
information as is contained in such notice and any solicitation materials,
(b)
that each Holder on the record date set by the Depositary therefor will, subject
to any applicable provisions of Brazilian law, rule and/or regulation be
entitled to instruct the Depositary as to the exercise of the voting rights,
if
any, pertaining to the Deposited Securities represented by the ADSs evidenced
by
such Holder's ADRs and (c) the manner in which such instructions may be given,
including instructions to give a discretionary proxy to a person designated
by
the Company. Upon receipt of instructions of a Holder on such record date in
the
manner and on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be voted
the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
in
accordance with such instructions. The Depositary will not itself exercise
any
voting discretion in respect of any Deposited Securities.
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To
the
extent such instructions are not so received by the Depositary from any Holder,
the Depositary shall take such action as is necessary, upon the written request
of the Company and subject to applicable law, and the terms and conditions
of
the Deposited Securities, to cause such underlying Shares to be counted for
the
purposes of satisfying applicable quorum requirements;
There
can be no assurance that Holders generally or any Holder in particular will
receive the notice described above with sufficient time to enable such Holder
to
return voting instructions to the Depositary in a timely
manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary may, in its reasonable discretion,
amend this ADR or distribute additional or amended ADRs (with or without calling
this ADR for exchange) or cash, securities or property on the record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any Share Distribution or Other Distribution not distributed to Holders or
any
cash, securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and, irrespective of whether such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule,
regulation or otherwise, to sell by public or private sale any property received
in connection with) any recapitalization, reorganization, merger, consolidation,
liquidation, receivership, bankruptcy or sale of all or substantially all the
assets of the Company, and to the extent the Depositary does not so amend this
ADR or make a distribution to Holders to reflect any of the foregoing, or the
net proceeds thereof, whatever cash, securities or property results from any
of
the foregoing shall constitute Deposited Securities and each ADS evidenced
by
this ADR shall automatically represent its pro rata interest in the Deposited
Securities as then constituted.
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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 or regulation of the United
States, The Federative Republic of Brazil or any other country, or of any
governmental or regulatory authority or any securities exchange or market or
automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act
of
God, war, terrorism or other circumstance beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strike, civil unrest, revolutions, rebellions, explosions and computer
failure) shall prevent, delay or subject to any civil or criminal penalty
any act which the Deposit Agreement or this ADR provides shall be done or
performed by
it or
them (including, without limitation, voting pursuant to paragraph (12) hereof),
or (ii) by reason of any exercise or failure to exercise any discretion given
it
in the Deposit Agreement or this ADR; (b) assume no liability except to perform
its obligations to the extent they are specifically set forth in this ADR and
the Deposit Agreement without gross negligence or bad faith; (c) in the case
of
the Depositary and its agents, be under no obligation to appear in, prosecute
or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which
in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to
give
such advice or information. The Depositary, its agents and the Company may
rely
and shall be protected in acting upon any written notice, request, direction
or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will
not
be responsible for any failure to carry out any instructions to vote any of
the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote. The Depositary may rely upon instructions from the
Company or its Brazilian counsel in respect of any approval or license of the
Brazilian government or any agency thereof required for any currency conversion,
transfer or distribution. The Depositary and its agents may own and deal in
any
class of securities of the Company and its affiliates and in ADRs.
Notwithstanding anything to the contrary set forth in the Deposit Agreement
or
an ADR, the Depositary and its agents may fully respond to any and all demands
or requests for information maintained by or on its behalf in connection with
the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise
related hereto to the extent such information is requested or required by or
pursuant to any lawful authority, including without limitation laws, rules,
regulations, administrative or judicial process, banking, securities or other
regulators. The Company has agreed to indemnify the Depositary and its agents
under certain circumstances and the Depositary has agreed to indemnify the
Company under certain circumstances. Neither the Company nor the Depositary
nor
any of their respective agents shall be liable to Holders or beneficial owners
of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary by 60 days prior written notice of its
election so to do delivered to the Company, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of
such appointment as provided in the Deposit Agreement. The Depositary may
at any time be removed by the Company by no less than 60 days prior written
notice of such removal, to become effective upon the later of (i) the 60th
day
after delivery of the notice to the Depositary and (ii) the appointment of
a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement. The Depositary may appoint substitute or additional
Custodians and the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
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(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 60 days of the date of such resignation, and (ii) been removed
as Depositary hereunder, notice of such termination by the Depositary shall
not
be provided to Holders unless a successor depositary shall not be operating
hereunder on the 60th
day
after the Company's notice of removal was first provided to the Depositary.
After the date so fixed for termination, the Depositary and its agents will
perform no further acts under the Deposit Agreement and this ADR, except to
receive and hold (or sell) distributions on Deposited Securities and deliver
Deposited Securities being withdrawn. As soon as practicable after the
expiration of six months from the date so fixed for termination, the Depositary
shall sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such sales,
together with any other cash then held by it under the Deposit Agreement,
without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered. After making such sale,
the
Depositary shall be discharged from all obligations to in respect of the Deposit
Agreement and this ADR, except to account for such net proceeds and other cash
and for its obligations to the Company under Section 16 of the Deposit
Agreement. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents (including, without limitation,
those under Section 16 of the Deposit Agreement).
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance of any
ADSs
(or any interest therein) issued in accordance with the terms and conditions
of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to
and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and
(b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to
act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary may
deem
necessary or appropriate under the Deposit Agreement to carry out the purposes
of the Deposit Agreement and the applicable ADR(s), the taking of such actions
to be the conclusive determinant of the necessity and appropriateness
thereof.
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