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Title: |
Deposit Agreement |
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Entities: |
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Date: |
2006 |
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Size: |
154KB total |
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Price: |
$57 |
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ID: |
#2653455 |
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===============================================================
MMX MINERAO E METLICOS S.A.
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF GLOBAL DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of _________________, 2006
===============================================================
Deliver; Deposit; Surrender; Transfer, or Withdraw.
Depositary; Corporate Trust Office.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Form and Transferability of Receipts.
Execution and Delivery of Receipts.
Registration of Transfer of Receipts; Combination and Split-up of Receipts.
Surrender of Receipts and Withdrawal of Shares.
Limitations on Execution and Delivery, Transfer and Surrender of Receipts.
Cancellation and Destruction of Surrendered Receipts.
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
Filing Proofs, Certificates and Other Information.
Warranties on Deposit of Shares.
Delivery of Information to the CVM.
Distributions Other Than Cash, Shares or Rights.
Conversion of Foreign Currency.
Voting of Deposited Securities.
Changes Affecting Deposited Securities.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
Maintenance of Office and Transfer Books by the Depositary.
Prevention or Delay in Performance by the Depositary or the Company.
Obligations of the Depositary, the Custodian and the Company.
Resignation and Removal of the Depositary.
Distribution of Additional Shares, Rights, etc.
Retention of Depositary Documents.
Owners and Beneficial Owners as Parties; Binding Effect.
Submission to Jurisdiction; Appointment of Agent for Service of Process.
Compliance with U.S. Securities Laws.
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _______________, 2006, among MMX MINERAO E METLICOS S.A., a corporation (sociedade annima) organized under the laws of the Federative Republic of Brazil (herein called the Company), THE BANK OF NEW YORK, a New York banking corporation (herein called the Depositary), and all Owners and Beneficial Owners from time to time of Global Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the Company from time to time with the Depositary or with the Custodian (as hereinafter defined) as agent of the Depositary for the purposes set forth in this Deposit Agreement, for the creation of Global Depositary Shares representing the Shares so deposited and for the execution and delivery of Global Depositary Receipts evidencing the Global Depositary Shares; and
WHEREAS, the Global Depositary Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and among the parties hereto as follows:
ARTICLE 1.
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1
Article; Section.
Wherever references are made in this Deposit Agreement to an Article or Articles or to a Section or Sections, such references shall mean an article or articles or a section or sections of this Deposit Agreement, unless otherwise required by the context.
SECTION 1.2
Beneficial Owner.
The term Beneficial Owner shall mean each person owning from time to time any beneficial interest in the Global Depositary Shares evidenced by any Receipt.
SECTION 1.3
Central Bank.
The term Central Bank shall mean the Banco Central do Brasil or any successor governmental agency in Brazil.
SECTION 1.4
Commission.
The term "Commission" shall mean the Securities and Exchange Commission of the United States or any successor governmental agency in the United States.
SECTION 1.5
Company.
The term Company shall mean MMX Minerao e Metlicos S.A., a corporation (sociedade annima) organized under the laws of the Federative Republic of Brazil, and its successors.
SECTION 1.6
Custodian.
The term Custodian shall mean the principal So Paulo office of Banco Ita S.A., as agent of the Depositary for the purposes of this Deposit Agreement, or any other firm or corporation which may hereafter be appointed by the Depositary pursuant to the terms of Section 5.5, as substitute custodian hereunder.
SECTION 1.7
CVM.
The term CVM shall mean the Comisso de Valores Mobilirios, the Brazilian National Securities Commission, or any successor governmental agency in Brazil.
SECTION 1.8
Deposit Agreement.
The term "Deposit Agreement" shall mean this Deposit Agreement, as the same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.9
Deliver; Deposit; Surrender; Transfer, or Withdraw.
The terms deliver, deposit, surrender, transfer or withdraw, when used (i) with respect to Shares: (a) in the case of book-entry Shares, shall refer to an entry or entries in an account or accounts maintained by institutions authorized under applicable law to effect transfers of securities, or (b) in the case of physical Share certificates, to the physical delivery, deposit, withdrawal or transfer of certificates representing the Shares and (ii) with respect to Global Depositary Shares evidenced by Receipts, (a) in the case of Global Depositary Shares available in book-entry form, shall refer to appropriate adjustments in the records maintained by (1) the Depositary, (2) The Depository Trust Company or its nominee, or (3) institutions that have accounts with The Depository Trust Company, as applicable, or (b) otherwise, shall refer to the physical delivery, deposit, surrender, transfer or withdrawal of such Global Depositary Shares evidenced by Receipts.
SECTION 1.10
Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking corporation, and any successor as depositary hereunder. The term "Corporate Trust Office", when used with respect to the Depositary, shall mean the office of the Depositary which at the date of this Agreement is 101 Barclay Street, New York, New York 10286.
SECTION 1.11
Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such time deposited or deemed to be deposited under this Deposit Agreement and any and all other securities, property and cash received by the Depositary or the Custodian in respect thereof and at such time held hereunder, subject as to cash to the provisions of Section 4.5.
SECTION 1.12
Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.13
DTC.
The term DTC shall mean The Depository Trust Company, or its successor.
SECTION 1.14
Estatuto Social.
The term Estatuto Social shall mean the constitutive documents of the Company.
SECTION 1.15
Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries out the duties of registrar for the Shares or any successor as registrar for the Shares and any other appointed agent of the Company for the transfer and registration of Shares.
SECTION 1.16
Global Depositary Shares.
The term "Global Depositary Shares" shall mean the securities representing the interests in the Deposited Securities and evidenced by the Receipts issued hereunder. Each Global Depositary Share shall represent the number of Shares specified in Exhibit A annexed hereto, until there shall occur a distribution upon Deposited Securities covered by Section 4.3 or a change in Deposited Securities covered by Section 4.8 with respect to which additional Receipts are not executed and delivered, and thereafter Global Depositary Shares shall evidence the amount of Shares or Deposited Securities specified in such Sections.
SECTION 1.17
Owner.
The term "Owner" shall mean the person in whose name a Receipt is registered on the books of the Depositary maintained for such purpose.
SECTION 1.18
Receipts.
The term "Receipts" shall mean the Global Depositary Receipts issued hereunder evidencing Global Depositary Shares.
SECTION 1.19
Registrar.
The term "Registrar" shall mean the Depositary or any other bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed by the Depositary to register Receipts and transfers of Receipts as herein provided and shall include any co-registrar appointed by the Depositary for these purposes.
SECTION 1.20
Restricted Securities.
The term Restricted Securities shall mean Shares, or Global Depositary Shares representing Shares, that are acquired directly or indirectly from the Company or any affiliate (as defined in Rule 144 under the Securities Act) of the Company in a transaction or chain of transactions not involving any public offering, or which are subject to resale limitations under Regulation D under that Act or both, or which are held by an officer, director (or person performing similar functions) or other affiliate of the Company, or that would require registration under the Securities Act in connection with the offer and sale thereof in the United States, or that are subject to other restrictions on sale or deposit under the laws of the United States or Brazil, or under a shareholder agreement or the Estatuto Social.
SECTION 1.21
Securities Act.
The term "Securities Act" shall mean the United States Securities Act of 1933, as amended.
SECTION 1.22
Shares.
The term "Shares" shall mean common shares in registered form of the Company, heretofore validly issued and outstanding and fully paid, nonassessable and that were not issued in violation of any pre-emptive or similar rights of the holders of outstanding Shares or hereafter validly issued and outstanding and fully paid, nonassessable and that were not issued in violation of any pre-emptive or similar rights of the holders of outstanding Shares or, in either case, interim certificates representing such Shares, provided, however, that, if there shall occur any change in par value, a split-up or consolidation or any other reclassification or, upon the occurrence of an event described in Section 4.8, an exchange, replacement or conversion in respect of the Shares of the Company, the term Shares shall thereafter also mean the successor securities resulting from such change in nominal value, split-up or consolidation or such other reclassification or such exchange, replacement or conversion.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1
Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt shall have 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 for the Receipts shall have been appointed and such Receipts are countersigned by the manual signature of a duly authorized officer of the Registrar. The Depositary shall maintain books on which each Receipt so executed and delivered as hereinafter provided and the transfer of each such Receipt shall be registered. Receipts bearing the manual or facsimile signature of a duly authorized signatory of the Depositary who was at any time a proper signatory of the Depositary shall bind the Depositary, notwithstanding that such signatory has ceased to hold such office prior to the execution and delivery of such Receipts by the Registrar or did not hold such office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or modifications not inconsistent with the provisions of this Deposit Agreement as may be required (i) reasonably by the Depositary or (ii) required to comply with any applicable law or regulations or with the rules and regulations of any securities exchange upon which Global Depositary Shares may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date or manner of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the Global Depositary Shares evidenced thereby), when properly endorsed or accompanied by proper instruments of transfer, shall be transferable by delivery with the same effect as in the case of a negotiable instrument under the laws of New York; provided, however, that the Depositary, notwithstanding any notice to the contrary, may treat the Owner thereof as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes, and neither the Depositary nor the Company shall have any obligation or be subject to liability under this Deposit Agreement to any holder of a Receipt unless that holder is the Owner of that Receipt.
SECTION 2.2
Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or evidence of rights to receive Shares may be deposited by delivery thereof to the Custodian hereunder, accompanied by any appropriate instrument or instruments of transfer, or endorsement, in form satisfactory to the Custodian, together with all such certifications as may be required by the Depositary or the Custodian in accordance with the provisions of this Deposit Agreement, and, if the Depositary requires, together with a written order directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order, a Receipt or Receipts for the number of Global Depositary Shares representing such deposit.
No Share shall be accepted for deposit unless accompanied by evidence reasonably satisfactory to the Depositary that any necessary approval has been granted by the Central Bank or any governmental body in Brazil that is then performing the function of the regulation of currency exchange. If required by the Depositary, Shares presented for deposit at any time, whether or not the transfer books of the Company or the Foreign Registrar, if applicable, are closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, which will provide for the prompt transfer to the Custodian of any dividend, or right to subscribe for additional Shares or to receive other property which any person in whose name the Shares are or have been recorded may thereafter receive upon or in respect of such deposited Shares, or in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.
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