October 26, 2004
Via Edgar
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Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Rule 424(b)(3) Filing in respect of Form F-6 Registration Statement No.
333-119881 for American Depositary Shares representing ten (10)
Ordinary shares, nominal value (euro)1.00 per share, (the "Deposited
Shares"), of EDP-Energias de Portugal, S.A. (formerly,
EDP-Electricidade de Portugal, S.A.), a company organized and existing
under the laws of the Republic of Portugal (the "Company").
Ladies and Gentlemen:
On behalf of Citibank, N.A., as Depositary (the "Depositary") and
acting on behalf of the legal entity created by the Deposit Agreement, dated as
of June 16, 1997, as amended by Amendment No. 1 to Deposit Agreement, dated as
of September 8, 2000, (the "Deposit Agreement"), by and among the Company, the
Depositary and all Holders and Beneficial Owners of American Depositary Shares
("ADSs") evidenced by American Depositary Receipts ("ADRs"), each representing
ten (10) Deposited Shares, I enclose for filing with the Securities and Exchange
Commission (the "Commission"), pursuant to Rule 424(b)(3) promulgated by the
Commission under the Securities Act of 1933, as amended (the "Act"), one (1)
copy of the form of ADRs which are to be issued by the Depositary and which
reflect the change in the name of the Company from EDP-Electricidade de
Portugal, S.A. to EDP-Energias de Portugal, S.A.
As required by Rule 424(e) under the Act, the cover of the enclosed ADR
has been marked to indicate the paragraph of Rule 424 under which the filing is
being made and the file number of the Form F-6 Registration Statement previously
filed and declared effective in respect of the ADRs.
In anticipation of any subsequent filings with, and/or submissions to,
the Commission that the Company and/or the Depositary may make, we respectfully
request that the Commission modify its records to reflect the change in the name
of the Company from EDP-Electricidade de Portugal, S.A. to EDP-Energias de
Portugal, S.A.
In the event any member of the Staff of the Commission has any
questions or comments concerning this filing, such person should contact the
undersigned at (212) 816-6691.
Very truly yours,
/s/ Dana Lowe
Dana Lowe
Enclosures
cc: Paul M. Dudek, Esq. (Securities and Exchange Commission - Office of
International Corporate Finance)
John P. McGill, Jr. (Cleary, Gottlieb, Steen & Hamilton)
Ricardo Szlezinger (Citibank, N.A. - ADR Department)
Richard Etienne (Citibank, N.A. - ADR Department)
Rule 424(b)(3) Filing
Form F-6 Reg. No. 333-119881
American Depositary Shares
(Each American Depositary Share representing
ten (10) fully paid ordinary shares nominal value Euro 1.00 each)
CUSIP 268353109
EXHIBIT A
[FORM OF FACE OF RECEIPT]
NUMBER
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
EDP-Energias de Portugal, S.A.
(A corporation organized under the laws of the Republic of Portugal
-Company Number ______________)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (herein called the
"Depositary"), hereby certifies that _________________________ is the owner of
_____ American Depositary Shares, each representing deposited ordinary shares,
nominal value Euro 1.00 each, including evidence of the right to be registered
as the owner of ordinary shares (the "Shares") of EDP-Energias de Portugal,
S.A., a corporation organized under the laws of the Republic of Portugal (the
"Company"). As of the date of the Deposit Agreement (hereinafter referred to),
each American Depositary Share represents ten (10) Shares deposited under the
Deposit Agreement with the Custodian which at the date of execution of the
Deposit Agreement is Citibank Portugal S.A. (the "Custodian"). The ratio of
Depositary Shares to shares of stock is subject to subsequent amendment as
provided in Article IV of the Deposit Agreement. The Depositary's principal
executive office is located at 388 Greenwich Street, New York, New York 10013,
U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
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issue of American Depositary Receipts ("Receipts"), executed and delivered
pursuant to the Deposit Agreement, dated as of June 16, 1997 (as amended from
time to time, the "Deposit Agreement"), by and among the Company, the Depositary
and all Holders and Beneficial Owners of Receipts from time to time of Receipts
issued thereunder, each of whom by accepting a Receipt agrees to become a party
thereto and become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights and obligations of Holders and Beneficial Owners
and the rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash, collectively, "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Principal Office of the Depositary and the
Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Association of the Company and are qualified by and subject to the detailed
provisions of the Deposit Agreement, to which reference is hereby made. All
capitalized terms used herein which are not otherwise defined herein shall have
the meanings ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities.
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
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surrender, at the Principal Office of the Depositary, of this Receipt and upon
payment of (i) the charges of the Depositary for the making of withdrawals and
cancellation of Receipts (as set forth in Article (10) hereof and Section 5.09
and Exhibit B of the Deposit Agreement) and (ii) all applicable taxes and
governmental charges payable in connection with such surrender and withdrawal,
and, subject to the terms and conditions of the Deposit Agreement, the Company's
Articles of Association, Article (23) of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder hereof
is entitled in the name of the Holder, or in a name specified by the Holder, to
register with the Share Registrar the Shares underlying such Receipts, and will
be entitled to the delivery to the Holder or upon such Holder's order, of the
amount of Deposited Securities at the time represented by the American
Depositary Shares evidenced by this Receipt. Subject to the last sentence of
this paragraph, such Deposited Securities may be delivered in registered form or
by electronic delivery. Such Deposited Securities may be delivered by (a)
electronic delivery of such Deposited Securities to such Holder or as ordered by
such Holder through an account with an institution recognized by the Share
Registrar or delivery by other means approved by the Company in accordance with
Portuguese law and (b) delivery of any other securities, property and cash to
which such Holder is then entitled in respect of this Receipt.
A Receipt surrendered for such purposes shall if so required by the
Depositary be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Holder thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered electronically
to or upon the written order of a person or persons designated in such order
through an account with an institution recognized by the Share Registrar, or
delivery by other means approved by the Company in accordance with Portuguese
law. Thereupon, the Depositary shall direct the Custodian to deliver, subject to
Sections 2.06, 3.01, 3.02, 5.09 and to the other terms and conditions of the
Deposit Agreement and Articles of Association, and to the provisions of or
governing the Deposited Securities and other applicable laws, now or hereafter
in effect, evidence of the electronic transfer of the Deposited Securities
represented by such Receipt except that the Depositary may make delivery to such
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person or persons at the Principal Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
The Depositary shall not accept for surrender a Receipt evidencing
American Depositary Shares representing less than one Share. In the case of
surrender of a Receipt evidencing a number of American Depositary Shares
representing other than a whole number of Shares, the Depositary shall cause
ownership of the appropriate whole number of Shares to be recorded in the name
of the Holder surrendering such Receipt, and shall deliver to the person
surrendering such Receipt the net cash proceeds from the sale by the Depositary
of any remaining fractional share.
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
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limitations set forth herein and in the Deposit Agreement, the transfer of this
Receipt is registrable on the books of the Depositary at its Principal Office by
the Holder hereof in person or by duly authorized attorney, upon surrender of
this Receipt at any of the Depositary's designated transfer offices, properly
endorsed for transfer or accompanied by a proper instrument or instruments of
transfer (including any certifications that the Depositary or the Company may
require in order to comply with applicable laws, signature guarantees in
accordance with standard industry practice and the accurate completion of any
endorsements appearing on this Receipt) and (i) duly stamped as may be required
by the laws of the State of New York and the United States of America, and (ii)
accompanied by funds sufficient to pay any applicable stamp, transfer or other
applicable taxes, duties and the charges set forth in Article (10) hereof, and
upon compliance with such regulations, if any, as the Depositary may establish
for such purpose, subject to Article (23) of this Receipt. This Receipt may be
split into other such Receipts, or may be combined with other such Receipts into
one Receipt for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
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precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, and subject to Article 23 of this Receipt, the Depositary, the
Custodian or the Share Registrar may require (i) payment from the presenter of
the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any share transfer or registration fee with respect
thereto (including any such tax, duty, charge, fee and expense with respect to
Shares being deposited or Deposited Securities being withdrawn) and payment of
any applicable fees payable by Holders as provided in this Receipt, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or other matters, subject to Article (23) of this Receipt, and (iii)
compliance with (a) any applicable laws or governmental regulations relating to
American Depositary Receipts or to the withdrawal of Deposited Securities and
(b) such reasonable regulations, if any, as the Depositary and the Company may
establish consistent with the provisions of the Deposit Agreement.
After consultation with the Company, the delivery of Receipts against
deposits of Shares generally or against deposits of particular Shares may be
suspended, or the delivery of Receipts against the deposit of particular Shares
may be withheld, or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer of Receipts generally
may be suspended or the surrender of outstanding Receipts for the purpose of
withdrawal of Deposited Securities may be suspended, during any period when the
transfer books of the Company, the Depositary or the Share Registrar are closed,
or if any such action is deemed necessary or advisable by the Depositary or the
Company in good faith at any time or from time to time, because of any
requirement of law, any government or governmental body or commission or any
3
securities exchange on which the Receipts or Shares are listed, or under any
provision of the Deposit Agreement or provisions of or governing Deposited
Securities, or any meeting of shareholders of the Company or for any other
reason, subject in all cases to Article (23) hereof. Notwithstanding any other
provision of the Deposit Agreement, the surrender of outstanding Receipts and
withdrawal of Deposited Securities may not be suspended except as required in
General Instructions IA(l) to Form F-6 (as such instructions may be amended from
time to time) under the Securities Act of 1933 in connection with (i) temporary
delays caused by closing the transfer books of the Depositary, the Company or
the Share Registrar or relating to the deposit of Shares in connection with
voting at a shareholders' meeting, or the payment of dividends, (ii) the payment
of fees, taxes, and similar charges, and (iii) compliance with any governmental
regulations relating to the Receipts or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall not, and
it shall instruct the Custodian not to, knowingly accept for deposit under the
Deposit Agreement any Shares or other Deposited Securities required to be
registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares or her Deposited
Securities or any Shares or Deposited Securities the deposit of which would
violate any provisions of the Company's Articles of Association.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: ____________________ By: ____________________
Authorized Officer Vice President
The address of the Principal Office of the Depositary is 388
Greenwich Street, New York, New York 10013, U.S.A.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(5) Compliance With Information Requests. Notwithstanding any other
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provision of the Deposit Agreement, the Company may from time to time request
Holders or former Holders to provide information as to the capacity in which
they hold or held Receipts and regarding the identity of any other persons then
or previously interested in such Receipts and the nature of such interest and
various other matters. Each Holder agrees to provide any such information
reasonably requested by the Company or the Depositary pursuant to this Section,
whether or not they are Holders at the time of such request. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting the Depositary to forward any such requests to the
Holders and to forward to the Company any such responses to such requests
received by the Depositary.
(6) Ownership Restrictions. The Company may restrict transfers of the
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Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Articles of Association of the Company. The Company
may also restrict, in such manner as it deems appropriate, transfers of the
American Depositary Shares where such transfer may result in the total number of
Shares represented by the American Depositary Shares owned by a single Holder to
exceed the limits under any applicable law. The Company may, in its sole
discretion, instruct the Depositary to take action with respect to the ownership
interest of any Holder in excess of the limitation set forth in the preceding
sentence, including but not limited to a mandatory sale or disposition on behalf
of a Holder of the Shares represented by the American Depositary Shares held by
such Holder in excess of such limitations, if and to the extent such disposition
is permitted by applicable law and the Articles of Association of the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax
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or other governmental charge shall become payable by the Depositary with respect
to any Receipt or any Deposited Securities represented by the American
Depositary Shares evidenced hereby, such tax or other governmental charge shall
be payable by the Holder hereof to the Depositary. The Depositary may refuse to
effect any registration of transfer of all or part of this Receipt or any
withdrawal of Deposited Securities represented by the American Depositary Shares
evidenced hereby until such payment is made, and the Company and the Depositary
may withhold or deduct from any dividends or other distributions, or may sell
for the account of the Holder hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge, with the Holder hereof
remaining liable for any deficiency. The Holder shall 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 tax, reduced rate of withholding at
source or other tax benefit obtained for such Holder pursuant to Section 4.15 of
the Deposit Agreement.
5
(8) Representations and Warranties of Depositors. Every person
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depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares are validly issued and outstanding, fully
paid and non-assessable, that any preemptive rights have been validly waived or
exercised and that the person making such deposit is duly authorized to do so.
Each such person shall be deemed to acknowledge complete responsibility for the
report of any false information relating to foreign exchange transactions to the
Depositary, the Custodian or any governmental authority in Portugal in
connection with the issuance of Receipts and the deposit, transfer, surrender or
withdrawal of Shares or Receipts. Every such person shall be deemed to represent
that the deposit of Shares or sale of Receipts by that person is not restricted,
and such Shares do not constitute Restricted Securities, under the Securities
Act of 1933. Such representations and warranties shall survive any such deposit,
transfer, surrender and withdrawal of Shares and Receipts. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions reasonably necessary to correct the
consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
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presenting Shares for deposit or any Holder may, in addition to the requirements
of Articles (4) and (5) hereof, be required from time to time (i) to file with
the Depositary or a Custodian such proof of citizenship or residence, taxpayer
status, exchange control approval, payment of all applicable taxes or other
governmental charges, the identity of any person legally or beneficially
interested in the Receipt and the nature of such interest, (ii) provide such
information relating to the registration on the books of the Company or the
Share Registrar of the Shares presented for deposit, (iii) establish compliance
with all applicable laws, rules and regulations of or governing the Deposited
Securities and the terms of the Deposit Agreement, and (iv) execute and deliver
to the Depositary or a Custodian such certificates and to make such
representations and warranties as the Depositary or the Company may deem
necessary or proper or as the Company reasonably may require by written request
to the Depositary and the Custodian. Subject to Article (23) hereof and the
terms of the Deposit Agreement, the Depositary may withhold the delivery or
registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof, or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are delivered or such representations and warranties
made.
(10) Charges of Depositary. The Depositary shall charge any party to
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whom Receipts are issued (including, without limitation, deposit or issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock for the Shares or Deposited Securities, or a distribution of
Receipts pursuant to Section 4.03 or 4.11 of the Deposit Agreement), or who
surrenders Receipts, a fee of U.S. $5.00 or less, and a fee of U.S. $5.00 or
less, in each case, per 100 American Depositary Shares (or portion thereof) for
the issuance or surrender, respectively, of a Receipt. In addition, Holders will
pay the fees of the Depositary for making a deposit, the execution and delivery
of Receipts, making a withdrawal, the surrender of Receipts and the making of
any distribution pursuant to the Deposit Agreement, all stamp, transfer and
other applicable taxes and other governmental charges, registration fees, cable,
telex and facsimile transmission and delivery expenses, and customary and other
expenses incurred by the Depositary in connection with its obligations and
duties under the Deposit Agreement, as set forth in Exhibit B thereof. Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company after consultation and agreement between the Depositary and the
Company concerning the nature and amount of such charges and expenses. All fees
and charges may at any time and from time to time be changed by agreement
between the Company and the Depositary. The charges and expenses of the
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Custodian, nominee or any other agent of the Depositary are for the sole account
of the Depositary. The provisions in respect of these charges may be changed in
the manner indicated in Article (21) of this Receipt.
(11) Title to Receipts. It is a condition of this Receipt, and every
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successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each American Depositary Share
evidenced hereby), when such Receipt is properly endorsed or accompanied by a
proper instrument or instruments of transfer, is transferable by delivery with
the same effect as in the case of a negotiable instrument; provided, however,
that the Company and the Depositary, notwithstanding any notice to the contrary,
may deem and treat the person in whose name this Receipt is registered on the
books of the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to any distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and neither the Depositary nor the Company shall have any
obligations or be subject to any liability hereunder or under the Deposit
Agreement to any holder of a Receipt unless such holder is a Holder thereof.
(12) Validity of Receipt. This Receipt shall not be entitled to any
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benefits under the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt has been executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar has been appointed and this Receipt
has been countersigned by the manual signature of a duly authorized officer of
the Registrar; and provided, further, that, only with respect to the Receipts
originally issued, the signatures of both the Depositary and the Registrar may
be facsimiles.
(13) Reports; Inspection of Transfer Books. The Company will be subject
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to the periodic reporting requirements of the Exchange Act as the same apply to
foreign private issuers, and accordingly, will file certain reports with the
Commission required under such Act. Such reports will be available for
inspection and copying at the public reference facilities maintained by the
Commission located at the date hereof at 450 Fifth Street N.W., Washington, D.C.
20549.
The Depositary will make available for inspection by Holders at its
Principal Office and at the office of each Custodian, copies of the Deposit
Agreement, any notices, reports or communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary, a Custodian, or the nominee of either of them as the holder of
the Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. In accordance with the Securities Exchange
Act of 1934, as amended, such reports and communications shall be in English.
The Depositary will also send to Holders copies of such reports when furnished
by the Company pursuant to Section 5.06 of the Deposit Agreement.
The Registrar will keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by Holders, provided that such inspection shall not be for the purpose of
communicating with Holders in the interest of a business or object other than
the business of the Company or a matter related to the Deposit Agreement or the
Receipts.
Subject to Article (23) hereof, the Registrar may close the transfer
books (with notice to the Company if other than in the ordinary course of
7
business), at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder
or at the reasonable written request of the Company.
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
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Depositary or any Custodian receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a Foreign Currency can in the judgment
of the Depositary, pursuant to Section 4.08 of the Deposit Agreement, be
converted on a practicable basis, by sale or any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States, and subject to the Deposit Agreement, promptly convert or cause
to be converted such dividend or distribution into Dollars and will distribute
promptly the amount thus received (net of fees of, and expenses incurred by, the
Depositary) to the Holders entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively without liability for interest thereon. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one Cent, and any balance not so distributable shall
be held by the Depositary (without liability for interest thereon) and shall be
added to and become part of the next sum received by the Depositary for
distribution to Holders of Receipts then outstanding. Pursuant to Articles (4)
and (7) hereof, if the Company or the Depositary is required to withhold and
does withhold from any cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, duties or other
governmental charges, the amount distributed to Holders on the American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded to the relevant
governmental authority by the person holding the withheld amounts.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of Shares, the Company shall deposit or cause
such Shares to be deposited with and registered with the Share Registrar in the
name of the Custodian and thereupon the Depositary may, with the Company's
approval and shall, if the Company so requests, subject to Section 5.07 of the
Deposit Agreement, either (i) distribute to the Holders entitled thereto, as of
the record date fixed pursuant to Section 4.09 of the Deposit Agreement, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for American
Depositary Shares, which represent in aggregate the number of Shares received as
such dividend or free distribution, subject to the terms of this Deposit
Agreement, including, without limitation, Sections 2.02, 2.03, 5.07 and 5.09 of
the Deposit Agreement; in lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the number of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.02 of the Deposit Agreement, or (ii) if additional Receipts are not so
distributed (except pursuant to (i) above), each American Depositary Share shall
thenceforth also represent pro rata the additional Shares distributed upon the
Deposited Securities represented thereby. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, or, if after the Company, in the
fulfillment of its obligations under Section 5.07 of the Deposit Agreement, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders, or
if the Company does not provide a satisfactory opinion as provided in Section
5.07, the Depositary may adopt such method as the Depositary may deem equitable
and practicable (after consultation with the Company) for the purpose of
effecting such distribution, including the disposal of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
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in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges, or effect the
distribution of unregistered Shares, and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes or charges to Holders
entitled thereto in proportion to the number of American Depositary Shares held
by them respectively and the Depositary shall distribute any unsold balance of
such property in accordance with the provisions of this Deposit Agreement.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary will, after
consultation with the Company, either (a) make such rights available to the
Holders, (b) dispose of such rights for the benefit of the Holders and make the
net proceeds available in Dollars to the Holders or (c) allow such rights to
lapse in the event such rights may not be made available to the Holders or may
not be disposed of for the benefit of the Holders; provided, however, that the
Depositary will, if requested by the Company in writing, take action as follows:
(a) if at the time of the offering of any rights, the Depositary in its
discretion, after the Company has obtained opinion(s) of counsel reasonably
satisfactory to the Depositary, that it is lawful and feasible to make such
rights available to all or certain Holders but not to others, by means of
warrants or otherwise, the Depositary will distribute warrants or other
instruments therefor in such form as it may determine, to the Holders entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, or employ such other method
as it may deem feasible after the Company has obtained opinion(s) of counsel
reasonably satisfactory to the Depositary in order to facilitate the exercise,
sale or transfer of rights or the securities obtainable upon the exercise of
such rights, by such Holders; or
(b) if at the time of the offering of any rights, the Depositary determines
after the Company has obtained opinion(s) of counsel reasonably satisfactory to
the Depositary, that it is not lawful or not feasible to make such rights
available to certain Holders by means of warrants or otherwise, or if the rights
represented by such rights, warrants or such other instruments are not exercised
and appear to be about to lapse, the Depositary shall use its reasonable efforts
to sell the rights, warrants or other instruments at public or private sale, in
a riskless principal capacity, at such place or places and upon such terms as it
may deem proper, and allocate the proceeds of such sales for the account of the
Holders otherwise entitled to such rights, warrants or other instruments upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions or the date of delivery of any
Receipt or Receipts, or otherwise, and distribute such net proceeds so allocated
to the extent practicable as in the case of a distribution of cash pursuant to
Section 4.02 of the Deposit Agreement. Neither the Company nor the Depositary
shall be responsible for (i) any failure of the Depositary to determine that it
may be lawful or feasible to make such rights available to Holders in general or
any Holder or Holders in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such rights, warrants or other instruments.
If the Depositary does not receive such written request from the
Company, the Depositary shall, after consultation with the Company, and after
obtaining opinion(s) of counsel reasonably satisfactory to the Depositary, have
discretion as to the procedure to be followed (i) in making such rights
available to the Holders, or (ii) in disposing of such rights on behalf of such
Holders and distributing the net proceeds available in dollars to such Holders
9
as in the case of a distribution of cash pursuant to Section 4.02 of the Deposit
Agreement, or (iii) in allowing such rights to lapse in the event such rights
may not be made available to Holders or be disposed of and the net proceeds
thereof made available to Holders.
Notwithstanding anything to the contrary in this Article (14), if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not offer such rights
to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect, or (ii) unless the Company
furnishes the Depositary opinion(s) of counsel for the Company in the United
States and counsel to the Company in any other applicable country in which
rights would be distributed, satisfactory to the Depositary or other evidence
satisfactory to the Depositary to the effect that the offering and sale of such
securities to the Holders of such Receipts are exempt from or do not require
registration under the provisions of the Securities Act or any other applicable
laws, provided, however, that nothing in this Deposit Agreement shall create, or
be construed to create, any obligation on the part of the Company to file a
registration statement or to endeavor to have such a registration statement
declared effective.
Whenever the Custodian shall receive any distribution other than cash,
Shares or rights in respect of any Deposited Securities, the Depositary shall,
after consultation with the Company, and after the Company has obtained
opinion(s) of counsel reasonably satisfactory to the Depositary that the
proposed distribution does not violate any applicable laws or regulations, cause
the securities or property so received to be distributed to the Holders entitled
thereto, as of a record date fixed pursuant to Section 4.09 of the Deposit
Agreement, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charge; provided, however, that,
if in the opinion of the Depositary or its counsel, it cannot cause such
securities or property to be distributed or such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including without limitation any requirement (i) that the Company, the
Depositary or the Custodian withhold an amount on account of taxes or other
governmental charges or (ii) that under applicable securities or exchange
control regulations or law such securities must be registered under the
Securities Act or other law in order to be distributed to Holders), the
Depositary deems such distribution not to be feasible, the Depositary shall
after consultation with the Company to the extent practicable, adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution and may rely on such advice, which method may include, but not be
limited to, the sale (at public or private sale) of the securities or property
thus received, or any part thereof, and the distribution of the net proceeds of
any such sale (net of taxes, fees and expenses of the Depositary set forth in
Section 5.09 or in Exhibit B of the Deposit Agreement) by the Depositary to the
Holders entitled thereto as in the case of a distribution received in cash,
provided that any unsold balance of such securities or property shall be
distributed by the Depositary to the Holders entitled thereto, if such
distribution is feasible without withholding for or an account of any taxes or
other governmental charges and without registration under the Securities Act, in
accordance with such equitable and practicable method as the Depositary may have
adopted.
Pursuant to Articles (4) and (7) hereof, if the Depositary determines
that any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax, duty or other governmental charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
10
Depositary deems necessary and practicable to pay any such taxes, duties or
governmental charges, and the Depositary shall distribute the net proceeds of
any such sale after deduction of such taxes, duties or governmental charges to
Holders entitled thereto in proportion to the number of American Depositary
Shares held by them respectively and shall distribute any unsold balance of such
property in accordance with the provisions of the Deposit Agreement.
The Custodian, the Depositary or the Company or its agents shall use
reasonable efforts to make and maintain arrangements enabling Holders who are
citizens or residents of the United States to receive any rebates, tax and/or
duty credits or other benefits (pursuant to treaty or otherwise) relating to
dividend payments on the American Depositary Shares to which they are entitled,
and they may file any such reports necessary to obtain benefits under applicable
tax treaties for the Holders.
(15) Fixing of Record Date. Whenever the Depositary shall receive notice
---------------------
of the fixing of a record date by the Company for the determination of holders
of Deposited Securities entitled to receive any cash dividend or other cash
distribution or any distribution other than cash, or any rights to be issued
with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, or whenever the
Depositary shall find it necessary or convenient in connection with the giving
of any notice, solicitation of any consent or any other matter, the Depositary
shall, after consultation with the Company, fix a record date as close as
practicable to the record date fixed by the Company in respect of the Shares for
the determination of the Holders of Receipts who shall be entitled to receive
such dividend, distribution rights or the net proceeds of the sale thereof, to
give instructions for the exercise of voting rights at any such meeting, or to
give or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each American Depositary Share. Subject
to the provisions of Sections 4.02 through 4.08 of the Deposit Agreement and to
the other terms and conditions of this Receipt and the Deposit Agreement, the
Holders of Receipts at the close of business on such record date shall be
entitled to receive the amount distributable by the Depositary with respect to
such dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively, or to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(16) Voting of Deposited Securities. As soon as practicable after
------------------------------
receipt of notice of any meeting at which the holders of Shares are entitled to
vote or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary will, to the extent permitted by law, (and
provided such written notice is received by the Depositary at least 30 days
prior to the date of such meeting) mail or cause to be mailed a notice
containing (i) such information as is provided to the Depositary by the Company,
(ii) a statement in English, in a form provided by the Company, that the Holders
of record at the close of business on a specified record date will be entitled,
subject to the terms of the Deposit Agreement, any applicable provisions of
Portuguese law, the Articles of Association of the Company and the provisions of
or governing Deposited Securities (which provisions, if any, shall have been
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights pertaining to the number of Deposited
Securities represented by their respective ADSs and (iii) a statement addressing
the manner in which such instructions may be given, including an indication that
instructions may be given (or may be deemed to have been given in accordance
with the next paragraph if no instructions are received prior to the deadline
set for such purposes) to the Depositary to give a discretionary proxy to a
11
person designated by the Company. In the event notice of the meeting and the
request of the Company are not received by the Depositary at least 30 days prior
to the meeting, the Depositary shall be under an obligation to notify the
Holders and shall be under no obligation to vote or cause to be voted the
Deposited Securities. A Holder of ADRs will only be entitled to exercise the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by its respective ADSs. Holders on the close of business on the
record date specified by the Depositary shall be entitled, subject to any
applicable provisions of law and the Company's Articles of Association, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Shares or other Deposited Securities represented by their
respective ADSs. The Depositary shall endeavor, insofar as practicable to vote
or cause to be voted the Shares so represented in accordance with any written
instructions of such Holder, including by aggregating, insofar as practicable,
in blocks of 100 ADSs of various Holders who have instructed the Depositary in
identical manner as to the exercise of rights with respect to any matter to be
voted upon.
Neither the Custodian nor the Depositary shall vote the Shares or other
Deposited Securities represented by the ADSs other than in accordance with
instructions from the Holder and as described in the following paragraph. If the
Depositary does not receive instructions from a Holder on or before the record
date specified by the Depositary, under certain circumstances such Holder shall
be deemed to have instructed the Depositary to give a discretionary proxy to the
person designated by the Company to vote the Shares or other Deposited
Securities.
Pursuant to the Company's Articles of Association, with the exception
of Portugal, PARTEST - Participacoes do Estado, S.G.P.S., S.A., (the "Selling
Shareholder") or an entity equivalent to the Selling Shareholder, no person may
exercise more than 5% of outstanding voting rights of the Company. Pursuant to
Portuguese law, no person may acquire more than 10% of the Shares (either
directly or in the form of ADSs) without the prior approval of the Ministry of
Finance. Holders of ADSs will be treated as holders of the Shares represented by
the ADSs for the purposes of determining the applicability of the foregoing
limitations.
(17) Changes Affecting Deposited Securities. Upon any change in nominal
--------------------------------------
or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or replacement or
otherwise in respect of, such Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and the Receipts shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such additional
securities. Alternatively, the Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of an opinion of counsel to the Company satisfactory to
the Depositary that such distributions are not in violation of any applicable
laws or regulations, execute and deliver additional Receipts as in the case of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited shares, with necessary modifications to the form of Receipt
contained in this Exhibit A to the Deposit Agreement, specifically describing
such new Deposited Securities or corporate change. The Company agrees to,
jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, and with
the Company's approval, shall if the Company requests, subject to receipt of an
opinion of Company's counsel satisfactory to the Depositary that such action is
12
not in violation of any applicable laws or regulations sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and shall allocate the net proceeds of such sales for the account of
the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.02 of the Deposit
Agreement. Neither the Company nor the Depositary shall not be responsible for
(i) any failure by the Depositary to determine that it may be lawful or feasible
to make such securities available to Holders in general or any Holder or Holders
in particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such securities.
(18) Indemnification. The Company agrees to indemnify the Depositary,
---------------
the Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any loss, liability,
tax, charge or expense of any kind whatsoever (including, but not limited to,
the reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares or other
Deposited Securities by the Company or any Affiliate of the Company or any
offering circular or registration statement under the Securities Act (whether or
not declared effective) in respect thereof, except to the extent such loss,
liability, tax, charge or expense (including reasonable fees and expenses of
counsel) arises out of information (or omissions from such information) relating
to the Depositary, furnished to the Company by the Depositary for use in any
offering documents in respect thereof or (b) out of acts performed or omitted,
in connection with the Deposit Agreement and the Receipts including but not
limited to any delivery by the Depositary on behalf of the Company of
information regarding the Company, in connection with the Deposit Agreement, the
Receipts, the American Depositary Shares, the Shares or any Deposited
Securities, as the same may be amended, modified or supplemented from time to
time, in any such case (i) by the Depositary, the Custodian or any of their
respective directors, employees, agents and Affiliates, except to the extent
such loss, liability, tax, charge or expense is due to negligence or bad faith
of any of them, or (ii) by the Company or any of its directors, employees,
agents and Affiliates.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which may arise out of any Pre-Release Transaction
(as defined in Article (24) hereof and Section 5.10 of the Deposit Agreement)
other than a Pre-Release Transaction entered into at the request of the Company.
The Depositary agrees to indemnify the Company and its directors,
employees, agents and Affiliates and hold each of them harmless from any loss,
liability, charge or expense of any kind whatsoever (including, but not limited
to, the reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted by the Depositary in any such case or any of its directors,
employees or Affiliates, including, but not limited to, any delivery by the
Company on behalf of the Depositary of information regarding the Depositary in
connection with the Deposit Agreement, the Receipts, the American Depositary
Shares, the Shares or any Deposited Securities, as the same may be amended,
modified, or supplemented from time to time, due to the negligence or bad faith
of the Depositary, and of any of its directors, employees, agents or Affiliates.
The obligations set forth in this Article (18) shall survive the
termination of the Deposit Agreement and the succession or substitution of any
party hereto.
13
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights otherwise than under this Article (18) and Section
5.08 of the Deposit Agreement) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim,
which defense shall be reasonable in the circumstances. No indemnified person
shall compromise or settle any action or claim without the consent of the
indemnifying person, which consent shall not be unreasonably withheld.
(19) Liability of the Company and the Depositary. Neither the Depositary
-------------------------------------------
nor the Company nor any of their respective controlling persons, directors,
employees, agents or affiliates shall incur any liability to any Holder or other
person if, by reason of any present or future law, the Articles of Association
of the Company, the provisions of any Deposited Security, act of God, war or
other circumstance beyond its control or by reason of any provision of any
securities issued by the Company, or any offering or distribution thereof, the
Depositary, its controlling persons or its agents or the Company, its
controlling persons or its agents shall be prevented, delayed or forbidden from
doing or performing any act or thing which by the terms of the Deposit Agreement
it is provided shall or may be done or performed, or by reason of any exercise
of, or failure to exercise, any discretion provided for in the Deposit Agreement
or obligated to do or perform any act which obligation is inconsistent with the
obligations of the Deposit Agreement. Each of the Depositary, its controlling
persons and its agents, the Company, its controlling persons and its agents
assumes no obligation and shall be subject to no liability under the Deposit
Agreement or this Receipt to Holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to perform in the
Deposit Agreement without negligence or bad faith and using its reasonable
judgment. The Depositary and the Company undertake to perform such duties and
only such duties as are specifically set forth in the Deposit Agreement, and no
implied covenants or obligations will be read into the Deposit Agreement against
the Depositary or the Company or their respective agents. None of the
Depositary, its controlling persons or its agents nor the Company its
controlling persons or its agents will be (a) under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this Receipt that in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it in its sole discretion
against all expense and liability be furnished as often as may be required or
(b) liable for any action or inaction by it or them 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 or them in good faith
to be competent to give such advice or information. The Depositary, its
controlling persons and its agents and the Company, its controlling persons and
its agents may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them in good faith to be
genuine and to have been signed or presented by the proper party or parties.
Subject to the provisions of this paragraph (19), the Depositary and its agents
will not be liable for any failure to carry out any instructions to vote any of
the Deposited Securities, for the manner in which any such vote is cast or for
the effect of any such vote. The Depositary may own and deal in any class of
securities of the Company and its affiliates and in Receipts.
(20) Resignation and Removal of the Depositary; Appointment of Successor
-------------------------------------------------------------------
Depositary. The Depositary may at any time resign as Depositary under the
----------
Deposit Agreement by written notice of its election so to do delivered to the
Company, such resignation to be effective on the earlier of (i) the 60th day
after delivery thereof to the Company, or (ii) upon the appointment of a
14
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
written notice of such removal which notice shall be effective on the earlier of
(i) the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary which shall be a bank or trust company having an
office in the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor, but such
predecessor, nevertheless, upon payment of all sums due 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, (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding Receipts and such other information relating to
Receipts and Holders thereof as the successor may reasonably request. Any such
successor depositary shall promptly mail notice of its appointment to such
Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(21) Amendment, Supplement. The form of the Receipts in respect of the
---------------------
Shares and any provisions of the Deposit Agreement may at any time and from time
to time be amended or supplemented by written agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the consent of the Holders. Any amendment or supplement which shall impose or
increase any fees or charges (other than taxes and other governmental charges),
or which shall otherwise prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 90 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders or Beneficial Owners. Every Holder
and Beneficial Owner at the time any amendment or supplement so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment or supplement and to be bound by the Deposit Agreement
as amended or supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed rules.
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.
15
(22) Termination. The Depositary shall, at any time at the written
-----------
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in Article (20) hereof and Section 5.04 of
the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of the Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Article (2) hereof and Section 2.05 of the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
of any applicable taxes or governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in Section 2.05 of the Deposit Agreement,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of the Deposit Agreement and applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may and intends to
sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated escrow account, without liability for
interest for the pro rata benefit of the Holders of Receipts whose Receipts have
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement with respect to
the Receipts and the Shares, Deposited Securities and American Depositary
Shares, except for its obligations to the Company under Article (18) hereof and
Section 5.08 of the Deposit Agreement and except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in
each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement as to
Receipts, the Company shall be discharged from all obligations under the Deposit
Agreement as to the Receipts and the Shares, Deposited Securities and American
Depositary Shares except for its obligations to the Depositary under Articles
(10) and (18) hereof, and Sections 5.08 and 5.09 of the Deposit Agreement.
(23) Compliance with U.S. Securities Laws. Notwithstanding any
------------------------------------
provisions in this Receipt or the Deposit Agreement to the contrary, the Company
and the Depositary have each agreed that it will not exercise any rights it has
under the Deposit Agreement or this Receipt to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate the United
16
States securities laws, including, but not limited to, Section IA(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(24) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (24), the Depositary and its
agents, on their own behalf, may own and deal in any class of securities of the
Company and any Affiliate of the Company and in ADRs. The Depositary may issue
Receipts against evidence of rights be registered with the Share Registrar as
the owner of Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of rights to be registered with the Share Registrar as the
owner of Shares furnished on behalf of the holder thereof. In its capacity as
Depositary, the Depositary shall not lend Shares or Receipts; provided, however,
that the Depositary may issue Receipts prior to the receipt of Shares pursuant
to Section 2.02 of the Deposit Agreement (a "Pre-Release Transaction") and
deliver Shares upon the receipt and cancellation of Receipts which were issued
in a Pre-Release Transaction but for which Shares may not have been received.
The Depositary may receive Receipts in lieu of Shares in satisfaction of a Pre-
Release Transaction. Each such Pre-Release Transaction will be (a) accompanied
by or subject to a written agreement whereby the person or entity (the
"Applicant") to whom Receipts are to be delivered (i) represents that at the
time of the Pre-Release Transaction the Applicant or its customer owns the
Shares or Receipts that are to be delivered in connection with such Pre-Release
Transaction, (ii) agrees to indicate the Depositary as owner of such Shares or
Receipts in its records and to hold such Shares or Receipts in trust for the
Depositary until such Shares or Receipts are delivered to the Depositary or a
Custodian, (iii) unconditionally guarantees to deliver to the Depositary or a
Custodian, as applicable, such Shares or Receipts and (iv) agrees to any
additional restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, United States government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of Receipts and
Shares involved in Pre-Release Transactions at any one time to thirty percent
(30%) of the number of Receipts then issued by the Depositary and in respect of
which shares are deposited with the Depositary or a Custodian, provided,
however, that the Depositary may change or disregard such limit from time to
time as it deems appropriate. The Depositary may also set limits with respect to
the number of Receipts and Shares involved in Pre-Release Transactions with any
one person on a case by case basis as it deems appropriate. The Depositary will
terminate all Pre-Release Transactions and enter no new Pre-Release Transactions
to the extent requested by the Company. The Depositary may retain for its own
account any compensation received by it in connection with the foregoing
(including, without limitation, earnings on the collateral provided pursuant to
(b) above). Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be for the benefit of the Holders (other than the Applicant).
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(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s)
and transfer(s) unto ______________________ whose taxpayer identification number
is _____________________ and whose address including postal zip code is
___________________________, the within Receipt and all rights and interests
represented thereby, and hereby irrevocably constitutes and
appoints_______________________ attorney-in-fact to transfer said Receipt on the
books of the Depositary, with full power of substitution in the premises.
Dated: Name:
By:
Title:
NOTICE: The signature of the Holder
to this assignment must correspond
with the name as written upon the
face of the within instrument in
every particular, without
alteration or enlargement or any
change whatsoever.
If the endorsement be executed by
an attorney, executor,
administrator, trustee or guardian,
the person executing the
endorsement must give evidence of
authority to act in such capacity,
if not on file with the Depositary,
must be forwarded with this Receipt
All endorsements or assignments of
Receipts must be guaranteed by a
member of a Medallion Signature
Program approved by the Securities
Transfer Association Inc.
SIGNATURE GUARANTEED
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EXHIBIT B
CHARGES OF THE DEPOSITARY
Service Rate By Whom Paid
(1) Issuance of Receipt upon Up to $5.00 per 100 Party for whom
deposit of Shares American Depositary deposits are made
(including deposits Shares (or fraction or receiving
pursuant to stock thereof) Receipt
dividends or any other
deposits)
(2) Delivery of deposited Up to $5.00 per 100 Party surrendering
Shares or other Deposited American Depositary Receipts or making
Securities, property and Shares (or fraction withdrawal
cash against surrender thereof)
of Receipts
In addition, Holders will pay (1) the fees of the Depositary for making
a deposit, the execution and delivery of ADRs, making a withdrawal, the
surrender of ADRs, and the making of any distribution pursuant to the Deposit
Agreement; (2) stamp, transfer and other applicable taxes and other governmental
charges; (3) such registration fees as may from time to time be in effect for
the registration of transfers of Ordinary Shares generally on the Central de
Valores Mobiliarios and applicable to transfers of Ordinary Shares to the name
of the Depositary or its nominee or a Custodian or its nominee or a person who
makes a withdrawal, on the making of deposits or withdrawals; (4) such cable,
telex and facsimile transmission and delivery expenses as are expressly provided
in the Deposit Agreement to be at the expense of persons depositing Ordinary
Shares or Holders; (5) such expenses as are incurred by the Depositary or a
Custodian in the conversion of Foreign Currency pursuant to the Deposit
Agreement; and (6) 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) in
connection with the delivery of Deposited Securities.
The Company after consultation and agreement between the Depositary and
the Company as to the amount and nature of any other charges, will pay those
other charges of the Depositary and those of any Registrar, if any, plus
reasonable out-of-pocket expenses in accordance with written agreements entered
into between the Depositary and the Company from time to time.
19