CONFORMED COPY
GAFISA S.A.
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▇▇▇ PAULO, SP, 05477-000
FEDERATIVE REPUBLIC OF BRAZIL
As of December 3, 2008
Citibank, N.A. - ADR Department
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Restricted ADSs (Cusip No.: ▇▇▇▇▇▇▇▇▇)
Ladies and Gentlemen:
Reference is made to Section 2.14 of the Amended and Restated Deposit
Agreement, dated as of March 21, 2007 (the "Deposit Agreement"), by and among
Gafisa S.A., a company organized under the laws of the Federative Republic of
Brazil (the "Company"), Citibank, N.A., as Depositary (the "Depositary"), and
all Holders and Beneficial Owners of American Depositary Shares (the "ADSs")
issued thereunder. All capitalized terms used, but not otherwise defined herein,
shall have the meaning assigned thereto in the Deposit Agreement.
EIP Brazil Holdings, LLC, a limited liability company organized under the
laws of the State of Delaware (the "Investor"), whose address and employer
identification number is set forth on Exhibit A attached hereto, owns Shares
that constitute Restricted Securities and has to hold such Shares in the form of
ADSs. The Company and the Depositary are willing to accommodate such request of
the Investor provided the terms of deposit of the Shares by the Investor neither
(i) prejudice any substantial rights of existing Holders and Beneficial Owners
of ADSs under the Deposit Agreement nor (ii) violate or conflict with any law,
rule or administrative position applicable to the ADSs.
The purpose and intent of this Letter Agreement (the "Letter Agreement")
is to supplement the Deposit Agreement for the purpose of accommodating (i) the
deposit of Shares that are Restricted Securities by the Investor in order to
allow the Investor to hold its ownership interests in such Restricted Securities
in the form of Restricted ADSs, (ii) the issuance and delivery of Restricted
ADSs at the request of the Company to the Investor reflecting its ownership in
such deposited Restricted Securities, (iii) the transfer and sale of Restricted
ADSs and (iv) certain ancillary transactions further described below. The
Company, the Investor and the Depositary agree that this Letter Agreement shall
be filed as an exhibit under Item 3(c) of Form F-6 under the Securities Act, to
the next Registration Statement on Form F-6 filed with the Commission in respect
of the ADSs after the execution of this Letter Agreement).
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Company, the Investor and the Depositary hereby
agree as follows:
1. Investor Deposits. The Company hereby consents, under Section 2.3 of
the Deposit Agreement, to the deposit by the Investor of 18,229,604 Shares (the
"Designated Restricted Shares") with the Custodian and the issuance and delivery
by the Depositary of the corresponding number of Restricted ADSs (the
"Designated Restricted ADSs") in respect thereof, upon the terms of this Letter
Agreement, to the Investor (or its nominee).
In furtherance of the foregoing, the Depositary agrees, upon the terms and
subject to the conditions set forth in this Letter Agreement, to establish
procedures to enable (x) the deposit of the Designated Restricted Shares with
the Custodian by the Investor (or its designee) and the issuance and delivery by
the Depositary to the Investor (or its designee) of the Designated Restricted
ADSs, and (y) the transfer of the Designated Restricted ADSs, the removal of the
transfer and other restrictions with respect to Designated Restricted ADSs in
order to create unrestricted ADSs, and the withdrawal of the Designated
Restricted Shares, in each case upon the terms and conditions set forth in the
Deposit Agreement, as supplemented by the terms of this Letter Agreement.
2. Company Assistance. The Company agrees to (i) provide commercially
reasonable assistance upon the request of and to the Depositary in the
establishment of such procedures to enable the acceptance of the deposit by the
Investor of the Designated Restricted Shares, the issuance of the Designated
Restricted ADSs to the Investor (or its designee), the delivery of Designated
Restricted ADSs to the Investor (or its designee), the transfer of Designated
Restricted ADSs by the Investor, the removal of the transfer and other
restrictions with respect to Designated Restricted ADSs in order to create
unrestricted ADSs, and the withdrawal of the Designated Restricted Shares, and
(ii) take all commercially reasonable steps requested by the Depositary to
ensure that the acceptance of the deposit of the Designated Restricted Shares,
the issuance and delivery of the Designated Restricted ADSs, the transfer of the
Designated Restricted ADSs, the removal of the transfer and other restrictions
with respect to Designated Restricted ADSs in order to create unrestricted ADSs,
and the withdrawal of Designated Restricted Shares, in each case upon the terms
and conditions set forth herein, do not prejudice any substantial existing
rights of Holders and Beneficial Owners of ADSs and do not violate the
provisions of the Securities Act or any other applicable laws, rules or
administrative positions.
In furtherance of the foregoing, at the time of the execution of this
Letter Agreement, the Company shall cause its Brazilian counsel to deliver an
opinion to the Depositary substantially stating, inter alia, that (i) the
Company has duly authorized, executed and delivered the Letter Agreement, (ii)
the Letter Agreement is a legal valid and binding agreement of the Company
enforceable against the Company upon its terms, (iii) none of the terms of the
Letter Agreement, and none of the transactions contemplated herein violate any
Brazilian law or regulation or any order, judgment or proceeding which is
binding upon the Company, (iv) none of the terms of the Letter Agreement, and
none of the transactions contemplated herein, conflict with any agreement to
which the Company is a party, (v) the Shares being deposited are free of all
liens, security interests and encumbrances that have been noted in the Company's
share register, and (vi) all governmental approvals, permits, consents and
authorizations required to be obtained by the Company in Brazil for the
transactions contemplated in the Letter Agreement have been obtained and are in
full force and effect.
3. Limitations on Issuance of Designated Restricted ADSs. In connection
with the transaction contemplated in Section 1 above, the Company hereby
instructs the Depositary, and the Depositary agrees, upon the terms and subject
to the conditions set forth in this Letter Agreement, to issue and deliver
Designated Restricted ADSs only (x) upon receipt of (i) the requisite number of
Designated Restricted Shares, (ii) the opinion of counsel identified in Section
2 hereof, and (iii) payment of the applicable fees, taxes and expenses otherwise
payable under the terms of the Deposit Agreement upon the deposit of Shares and
the issuance of ADSs, including, without limitation, an issuance fee equal to
$0.035 per Restricted ADS issued, and (y) in the event of any corporate action
of the Company which results in the issuance of Restricted ADSs to the Holder(s)
of the Designated Restricted ADSs.
The Investor hereby agrees to pay the Depositary (i) the fees described in
subparagraph (iii) of the immediately preceding paragraph prior to the issuance
of the Restricted ADSs to the Investor contemplated hereunder, and (ii) the
fees, taxes and expenses otherwise payable under the terms of the Deposit
Agreement to the extent applicable. Notwithstanding anything contained herein to
the contrary, the Depositary hereby agrees that it shall not impose any issuance
fee upon the sale or transfer of the Designated Restricted ADSs, regardless of
whether such sale or transfer is made in the form of unrestricted ADSs or
Restricted ADSs. In addition, the Investor agrees to pay the Company on demand
for any fees and expenses incurred by the Company under this Letter Agreement.
The Designated Restricted ADSs issued upon the deposit of Designated
Restricted Shares shall be separately identified on the books of the Depositary
under CUSIP No.: ▇▇▇▇▇▇▇▇▇ and the Designated Restricted Shares shall be held
separate and distinct by the Custodian from the other Deposited Securities held
by the Custodian in respect of the ADSs issued under the Deposit Agreement that
are not Designated Restricted ADSs.
4. Stop Transfer Notation and Restrictions. Notwithstanding the terms of
the Deposit Agreement, the Designated Restricted ADSs shall be issued by the
Depositary as Uncertificated ADSs. The books of the Depositary shall identify
the Designated Restricted ADSs as "restricted" and shall contain a "stop
transfer" notation to that effect. The Investor hereby agrees to and
acknowledges the following restrictions imposed upon the Designated Restricted
ADSs:
(a) The Designated Restricted ADSs and the Designated Restricted Shares
represented thereby have not been and will not be registered under the
Securities Act, and may not be offered, sold, pledged or otherwise transferred
except (A)(1) in a transaction exempt from Registration under the Securities Act
or (2) pursuant to an effective Registration Statement under the Securities Act,
and (B) in each case in accordance with all applicable securities laws of the
States of the United States;
(b) Prior to the withdrawal of the Designated Restricted Shares, the
Investor will be required to provide to the Depositary and the Company a
withdrawal certification in the form attached to the Letter Agreement;
(c) Notwithstanding anything to the contrary in the foregoing, the
underlying Designated Restricted Shares may not be deposited into any Depositary
Receipt facility established or maintained by a depositary bank other than a
restricted depositary receipt facility, unless and until such time as such
shares are no longer Restricted Securities; and
(d) Neither the Company nor the Depositary makes any representation as to
the availability of the exemption provided by Rule 144 under the Securities Act
for resale of the Designated Restricted Shares or the Designated Restricted
ADSs.
5. Limitations on Transfer of Designated Restricted ADSs. The Designated
Restricted ADSs shall be transferable by the Holder thereof, only upon delivery
to the Depositary of (i) all documentation otherwise contemplated by the Deposit
Agreement, and (ii) an opinion of the applicable Holder's U.S. counsel
reasonably satisfactory to the Depositary stating that, inter alia, the
requested transfer is in accordance with the conditions upon which the
Designated Restricted ADSs are transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Designated Restricted ADR presented for transfer.
6. Limitations On Cancellation of Designated Restricted ADSs. The Company
instructs the Depositary, and the Depositary agrees not to release any
Designated Restricted Shares or cancel any Designated Restricted ADSs for the
purpose of withdrawing the underlying Designated Restricted Shares unless (x)
the conditions applicable to the withdrawal of Shares from the depositary
receipts facility created pursuant to the terms of the Deposit Agreement have
been satisfied (except for any conditions relating to the Shares not being
Restricted Securities) and the applicable ADS cancellation fees payable under
the terms of the Deposit Agreement, and (y) the Depositary shall have received
from the person requesting the withdrawal of the Designated Restricted Shares a
duly completed and signed Withdrawal Certification substantially in the form
attached hereto as Exhibit B (such certification, a "Withdrawal Certification").
7. Fungibility. Except as contemplated herein and except as required by
applicable law, the Designated Restricted ADSs shall, to the maximum extent
permitted by law and to the maximum extent practicable, be treated as ADSs
issued and outstanding under the terms of the Deposit Agreement that are not
Designated Restricted ADSs. Nothing contained herein shall obligate the
Depositary to treat Holders of Designated Restricted ADSs on terms more
favorable than those accorded to Holders of ADSs under the Deposit Agreement.
8. Removal of Restrictions. The Company may instruct the Depositary from
time to time in writing that some or all of the Designated Restricted ADSs no
longer constitute Restricted Securities. The Depositary shall remove all stop
transfer notations from its records in respect of specified Designated
Restricted ADSs and shall treat such Designated Restricted ADSs on the same
terms as the ADSs outstanding under the terms of the Deposit Agreement that are
not Restricted ADSs upon receipt of (x) written instruction signed by the
Company to do so, and (y) an opinion of U.S. counsel to the Company
substantially stating to the effect that, the removal of distinctions between
the Designated Restricted ADSs and the ADSs does not violate U.S. securities
laws. Upon (i) receipt of such instructions and opinion of counsel or (ii)
receipt of evidence reasonably satisfactory to the Depositary that the transfer
of certain Designated Restricted ADSs is covered by an effective registration
statement under the Securities Act, the Depositary shall take all actions
necessary to remove any distinctions previously existing between the applicable
Designated Restricted ADSs and the ADSs that are not Restricted ADSs, including,
without limitation, by removing the stop transfer notations on its records in
respect of the applicable ADSs previously identified as Designated Restricted
ADSs.
9. Representations and Warranties. The Investor hereby represents and
warrants, in lieu of the deemed representations set forth in Section 3.3 of the
Deposit Agreement that (a) the Designated Restricted Shares being deposited by
the Investor for the purpose of the issuance of Designated Restricted ADSs are
validly issued, fully paid and non-assessable, and free of any preemptive rights
of the holders of outstanding Shares and free of any and all liens, security
interests and encumbrances, (b) the Designated Restricted Shares are of the same
class as, and rank pari passu with, the other Shares on deposit under the
Deposit Agreement, (c) the Investor is the sole beneficial owner of the
Designated Restricted Shares and will be the sole Beneficial Owner of the ADSs,
and (d) the deposit with the Custodian of the Designated Restricted Shares by,
and the issuance and delivery of the Designated Restricted ADSs by the
Depositary to, the Investor does not constitute a transfer of beneficial
ownership of such Designated Restricted Shares. Such representations and
warranties shall survive the deposit of the Designated Restricted Shares and the
issuance of Designated Restricted ADSs.
10. Company Indemnity. The Company acknowledges and agrees that the
indemnification provisions of Section 5.8 of the Deposit Agreement shall apply
to any acts performed or omitted by the Depositary in accordance with this
Letter Agreement.
11. Authorized Person; Investor Indemnity. The Investor hereby designates
the persons identified on Exhibit C attached hereto, and shall from time to time
hereafter designate one or more persons in writing, as persons authorized to act
on its behalf with respect to the Letter Agreement, including, without
limitation, to provide instructions designating additional or substitute persons
authorized to so act (each person so designated, an "Authorized Person"). The
Investor shall indemnify the Depositary against, any and all claims, losses,
actions, liabilities, costs, damages and expenses (including attorneys' fees and
expenses) it may incur in connection with its acting in accordance with any
information, instruction or communication received from an Authorized Person.
12. Tax Certification. Promptly following the date first set forth above,
the Investor will provide the Depositary with the appropriate Form W-9 for tax
identification number certification purposes.
13. Governing Law. This Letter Agreement shall be interpreted in
accordance with, and all rights hereunder and the provisions hereof shall be
governed by, the laws of the State of New York applicable to contracts to be
wholly performed in the State of New York.
The Company, the Investor and the Depositary have caused this Letter
Agreement to be executed and delivered on their behalf by their respective
officers thereunto duly authorized as of the date set forth above.
CITIBANK, N.A. as Depositary
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
GAFISA S.A.
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: Alceu Calcioari/▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO/CEO
EIP BRAZIL HOLDINGS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Secretary
EXHIBITS
A Address and Employer Identification Number of the Investor
B Withdrawal Certification
C Schedule of Authorized Persons
EXHIBIT A
to
Letter Agreement, dated as of December 3, 2008
(the Letter Agreement"), by and among
Gafisa S.A, EIP Brazil Holdings, LLC
and
Citibank, N.A.
_____________________
ADDRESS AND EMPLOYER IDENTIFICATION NUMBER OF THE INVESTOR
_____________________
All capitalized terms used but not otherwise defined herein shall
have the meaning given to such terms in the Letter Agreement.
_____________________
Employer Identification
Name of Investor Address Number
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EIP Brazil Holdings, LLC Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
c/o Equity International ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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A-1
EXHIBIT B
to
Letter Agreement, dated as of December 3, 2008
(the "Letter Agreement"), by and among
Gafisa S.A, EIP Brazil Holdings, LLC
and
Citibank, N.A.
_____________________
WITHDRAWAL CERTIFICATION
_____________________
_______________, ____
Citibank, N.A.,
as Depositary
ADR Department
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Attention: Broker Services
Gafisa S.A.. (Cusip No.: ▇▇▇▇▇▇▇▇▇)
Dear Sirs:
Reference is hereby made to (i) the Amended and Restated Deposit
Agreement, dated as of March 21, 2007 (the "Deposit Agreement"), by and among
Gafisa S.A. (the "Company"), Citibank, N.A., as Depositary (the "Depositary"),
and all Holders and Beneficial Owners of American Depositary Shares issued
thereunder, and (ii) the Letter Agreement, dated as of December 3, 2008 (the
"Letter Agreement"), by and among the Company, EIP Brazil Holdings, LLC and the
Depositary. Capitalized terms used but not defined herein shall have the
meanings given to them in the Deposit Agreement, or, in the event so noted
herein, in the Letter Agreement.
This Withdrawal Certification is being furnished in connection with the
withdrawal of Designated Restricted Shares (as defined in the Letter Agreement)
upon surrender of Designated Restricted ADSs (as defined in the Letter
Agreement) to the Depositary.
(A) We acknowledge, or, if we are acting for the account of another
person, such person has confirmed to us that it acknowledges, that the
Designated Restricted ADSs and the Designated Restricted Shares
represented thereby have not been registered under the Securities Act.
B-1
(B) We certify that we are the beneficial owner and that will sell the
Designated Restricted Shares in compliance with the requirements of the
U.S. securities laws (including, without limitation, the applicable laws
of the states of the United States), and we will not deposit, or cause to
be deposited, such Designated Restricted Shares into any depositary
receipts facility established or maintained by a depositary bank other
than a restricted facility established and maintained for such purpose.
Very truly yours,
EIP BRAZIL HOLDINGS, LLC
By: ______________________________________
Name:
Title:
B-2
EXHIBIT C
to
Letter Agreement, dated as of December 3, 2008
(the "Letter Agreement"), by and among
Gafisa S.A, EIP Brazil Holdings, LLC
and
Citibank, N.A.
_____________________
SCHEDULE OF AUTHORIZED PERSONS
_____________________
All capitalized terms used but not otherwise defined herein shall
have the meaning given to such terms in the Letter Agreement.
_____________________
The Depositary is authorized to accept instructions signed or believed by the
Depositary to be signed by the following on behalf of the Investor:
_________________________________ /s/ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ------------------------------------
True Signature
_________________________________ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ -----------------------------------
True Signature
_________________________________ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ------------------------------------
True Signature
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