SECURITIES COMMISSION - CVM Instruction 331 OF APRIL 4, 2000.

This is a Free Translation. Any questions arising from the text should be clarified by consulting the original.

Regulates the registration of companies for the issue and trade of Brazilian Depositary Receipts - BDR under Level II and III Sponsored Programs backed by shares that are issued by publicly-held or similar offshore companies.

 

The Chairman of the Securities and Exchange Commission of Brazil - CVM makes it public that in a meeting held on March 24, 2000, based on the provisions of articles 19 and 21 of Law No. 6385 of December 7, 1976, the full board RESOLVED to issue the following ruling:

Article 1. - Trading Level II and III Brazilian Depositary Receipts – BDR in the stock exchange or in the organized over-the-counter market, shall be conditional on the company’s preliminary registration with the CVM pursuant to the rules set out herein.

Article 2. - The company’s application for registration shall be submitted to the CVM together with the request for public distribution of BDR, and any approval issued by the CVM shall cover both requests.

COMPANY OFFICER RESPONSIBLE FOR THE BDR PROGRAM AND THE LEGAL REPRESENTATIVE

Article 3. - Company registration shall only be granted when:

I.   - the depositary institution (Depositary) has designated a company officer to be responsible for the BDR program; and

II.  - a legal representative for the company has been designated in Brazil, who shall be vested with all the powers necessary to handle any issues, and who shall represent the company in court and receive summons on behalf of the company.

Paragraph 1. The legal representative must be domiciled and resident in Brazil, and his/her assignment shall be expressed by him/her and formally accepted, with details, including the knowledge on the responsibilities imposed to him/her by Brazilian law and the regulations.

Paragraph 2. In the case of resignation, death, disability or permanent inability of the legal representative, the company shall have the term of 20 (twenty) days to promote his/her replacement, with the observance of the procedure referred to in Paragraph 1.

Article 4. - The legal representative referred to in Article 3, as well as the company, shall be accountable for providing the information set forth in Article 11 hereof to investors, the CVM, the stock exchange and the organized over-the-counter market, and for keeping updated the company’s registration.

 

DOCUMENTS REQUIRED TO OBTAIN COMPANY REGISTRATION

Article 5. - The request for company registration shall be supported with the following documents and information:

I.   - a document issued by the company’s administration, which designates the legal representative and a document of the Depositary designating the responsible officer, with the observance of the provision set forth in Paragraph 1 of Article 3.

- II.  - a request signed by the officer responsible for the Depositary, containing information on:

    1. the stock exchange or the organized over-the-counter market in which the company securities are traded, and the volume traded during the last twelve months;
    2. the company’s controlling shareholders;
    3. the officers managing the company’s business;
    4. the company’s consultants and independent auditors;
    5. the address of the company’s headquarters;
    6. the place where services are provided to shareholders;
    7. the BDR program investor services; and

    1. the legal opinion issued by a lawyer, domiciled in the country where the securities are kept in custody, on the legal environment in this country, especially with regard to requirements and limitations of trading, chances for cancellation of registration and restrictions on the exercise of political or cash rights, including if so, by reason of the difference between headquarters of the company and the custodian;
    2. issues concerning investors interests relevant to the program of BDR’s, as well as the services provided by the depository institution.

III. - information on the company provided by its legal representative:

(a) the bylaws or articles of association that govern the company;

(b) the related laws that govern the company;

(c) the shareholders’ agreements;

(d) the legal opinion issued by an attorney from the country of origin regarding the rights of the holders of securities issued by the company and regarding the legal environment of that country; and

(e) the minutes of all general shareholders' and debentureholders' meeting for all meetings of executives bodies of the company held in the last twelve months prior to the date of registration at the CVM.

IV. - accounting information furnished by the company's legal representative:

    1. the financial statements of the company and the consolidated statements as submitted in the country of origin for the last three corporate years, together with insofar as appropriate the management reports and the opinion of the independent auditors;

 

    1. financial statements of the company and consolidated statements, elaborated in accordance with Brazilian accounting principles and practices, together with a special review report issued by an independent auditor registered with the CVM and the submission of the Standard Financial Statements form – DFP, filled based on the report mentioned;

 

    1. quarterly balance sheet and quarter income statement, according to Brazilian accounting principles and practices, together with the performance report of the quarter, on each of the first three quarters of the fiscal year in progress, since it has passed more than forty-five days of the end of each quarter, or that have already been disclosed in another country, accompanied by a special review report issued by independent auditor registered with the CVM.

V.  - qualitative information presented on the form Annual Information – IAN:

    1. the history and development of the company, with the main events that determined the conduct of business , including corporate transactions such as amalgamation, merger and spin-off, investments and devestitures under way and business policies;
    2. the organizational structure with a description of the business segments and corporate subsidiaries;
    3. the business scenario with a description of the nature of the transactions of the company and its principal activities, the main categories of products and services sold in each of the last three years; description of the main markets in which the company competes, with details on the revenues broken down according to activity category and the geographic market in each of the last three years; description of the seasonal nature of the main company businesses; description of the channels for distribution used by the company, with explanations as to the corporate sales methods; a summary of the patent, license and trademark situation; description of the substantial effects of the regulatory environment on the company business;
    4. the comments and operating and financial perspectives with the liquidity and profitability situation, generation and application of funds, per corporate business segment; the causes of the variations in the items making up the accounting statements from one year to another as needed for the understanding of the company business as a whole;
    5. the study of the economic/financial feasibility of the project, indicating among other things the risk factors involved in the undertaking, drawn up on a date that precedes by no more than three months the entry of the request at the CVM, when dealing with a company still in its pre-operation phase; and

    1. indication of risk factors related to the limitation on the exercise of rights by the owners of BDR’s, including those arising from the diversity between the company's headquarters country and the country in which the securities are traded, elaborated up to three months prior to the entry of the request in the CVM, and
    2. any other information disclosed in any other market in which the company has its securities traded.

Paragraph 1. The Company shall disclose the period of time for BDR’s owners to render effective their participation in the stockholders general meeting regarding the securities represented by those BDR’s.

Paragraph 2. The Company’s financial statements and consolidated statements referred to in better "b" of item IV at the caput of this article, shall be complemented by Explanatory Notes in addition to the financial statements mentioned in letter "a" of the same item, describing:

I – the accounting standard on the country of the company’s headquarter and the comparative analysis between the principles and accounting practices of such country and the Brazilian ones;

II – the accounting information disclosed in countries other than the company’s country of origin;

III – the conciliation of equity and result elements with those verified in accordance with the Brazilian principles and accounting practices;

Paragraph 3. According to the Technical Pronouncement no. 2 issued by the Committee of Accounting Pronouncements and approved by CVM’s Deliberation n. 534, dated January 29, 2008, the information mentioned in letters "b" and "c" of item IV at the caput of this article, as well as those given in paragraph 2 of this article, shall be presented in the national currency.

Paragraph 4. In case the financial statements mentioned in letter "a" of the item IV at the caput of this article are elaborated in accordance with the international accounting rules issued by the International Accounting Standards Boards – IASB:

I- It is exempt the presentation of the financial statements and the quarterly information given in Letters "b" and "c" of item IV at the caput of this article; and

II- The requirements provided for in items I to III of paragraph 2 and in paragraph 3 apply to the financial statements and quarterly information elaborated in accordance with the international rules, and shall be supplemented by a special review report issued by the Independent Auditor registered with the CVM on the sufficiency and the adequacy of the Explanatory Notes referred in items I to III of paragraph 2.

Paragraph 5. The provision mentioned in paragraph 4 is applicable even when only the consolidated financial statement is elaborated and disclosed in accordance with international accounting standards.

Article 6. - Upon submission of disclosure of business projections, the company should adopt the following procedures:

I.   - clearly show for each of the items and periods projected the premises and rough calculations used;

II.  - show, upon provision of the quarterly information, the comparison between the projections drawn up and the results actually obtained over the quarter, clearly indicating the reasons that caused any deviations from the projections made earlier; and

III. – when, in the judgment of the officers and based on solid grounds, the projections cease to be valid or are modified, this should be disclosed to the market forthwith.

EXAMINATION OF THE COMPANY REGISTRATION

Article 7. - The registration will be considered automatically granted if the request is not denied within thirty days after its submission to the CVM, by means of formal protocol, with the documents and information required.

Sole paragraph - Failure to present all documentation set out in Article 5 of this ruling will entail disregard of the request and the consequential cancellation of the protocol at the CVM.

Article 8. - The term of thirty days can be interrupted just once if the CVM were to request of the company additional documentation and information with regard to the request for corporate registration, when the term of fifteen days will begin, after compliance with requirements, for scrutiny of the application for registration.

Sole paragraph - For meeting of any requirements, a term not in excess of sixty days as from receipt of the respective correspondence will be granted, under the penalty of disregard of the registration application.

Article 9. - Thirty days after denial of the registration application, all documentation accompanying said application will remain at the disposal of the company, for a term of ninety days, at the end of which said documentation can be destroyed by the CVM.

Article 10. - In no event can the voting right for the securities represented by the BDRs be granted without a specific power of attorney to the officer of the issuer company, to its controlling shareholder, or to a person indicated thereby.

UPDATING OF THE COMPANY REGISTRATION

Article 11. - Once registration has been granted, the legal representative of the company shall adopt the following procedures:

I.   – send the CVM the information mentioned in Article 5, by magnetic means pursuant to the computer programs furnished, the forms Standard Financial Statements – DFP, Annual Information – IAN and Quarterly Information – ITR, within a term of five days;

II.  - proceed with updating at the CVM and the market of its registration data, up to five days after the occurrence of any change therein;

III. – simultaneously disclose to all markets in which it participates the relevant information, including with regard to the company business, changes in the bylaws or the articles of association , profitability perspectives, sales, cost and expense behaviors disclosed by any means of communication or at meeting of the class entity, so as to guarantee full and immediate dissemination; and

IV.  – the information set out in items II and III above should be registered at the CVM via resubmission of the form Annual Information – IAN.

Article 12. - The legal representative should provide the following information from time to time, within the time frames specified:

I.  - the financial statements and as applicable the consolidated statements drawn up in the form of item IV of Article 5 or in the form of paragraph 4 of the same article, on the date of their disclosure in any other country or market;

  • Item I amended by CVM Instruction 431, dated May 29, 2006.

II.  – the form Standard Financial Statements - DFP, which correspond to the group of financial statements set out in the previous item, on the date of their disclosure in any other country or market;

III. – the form Annual Information - IAN, on the date of disclosure in any other country or market of information of similar content;

IV.  – the summary of the decisions taken at the annual general meeting, immediately after the meeting is held;

V.  - the minutes of the annual general meeting on the date of disclosure in any other country or market; and

VI. – the form Quarterly Information – ITR together with the special review report issued by an independent auditor registered at the CVM, within a maximum term of forty-five days after termination of each financial year, except the last quarter of the financial year or on the date of disclosure of information of similar content in any other country or market.

Paragraph 1.  Should the company be in its preoperation phase it must supply together with the form Annual Information – IAN updated information on the status of the project submitted to the CVM at the time of the registration application.

Paragraph 2.  Should the company get into a legal situation unlike its normal operation conditions, the legal representative must provide quarterly information as to the terms set, stages attained, goods transferred, sums collected, amounts disbursed, and any other information considered of relevance to the securities market on the date of disclosure in any other country or market.

CONTINGENT INFORMATION

Article 13. - The legal representative should provide the following contingent information within the time frames set out:

I.   - the public notice of call to extraordinary or special general meeting on the date of disclosure in any other country or market;

II.  - the summary of the decisions taken at the special or extraordinary general meetings on the day following the holding of such meetings;

III. – the minutes of the extraordinary or special general meeting on the date of disclosure in any other country or market;

IV. – the shareholders' agreement, on the date of disclosure in any other country or market or on the day following the date formally submitted at the corporate headquarters;

V.  – the communication as to any relevant act or fact on the date of disclosure in any other country or market;

VI. – the information as to the modification of the legal status of the company, its grounds, financial statements especially prepared for changes in the earlier corporate situation and, if applicable, the situation of the holders of securities on the date of the disclosure in any other country or market; and

VII. – other information requested by the CVM, in such terms as the latter may set out.

THE PENALTIES

Article 15. - Any transgression of the provisions of this ruling is deemed a serious infraction as per the intents and purposes set out in paragraph 3 of Article 11 of Law No. 6.385, dated December 7, 1976.

GENERAL PROVISIONS

Article 16. - The Securities Commission - CVM registration does not entail any scrutiny as per the company, and its officers, its legal representative and the director charged with the BDR program, responsible for the veracity of the information provided.

Article 17. - The provisions of this ruling apply insofar as appropriate to any Depositaries that have already issued and publicly distributed the certificates of deposit of securities – BDRs backed up by securities issued by the publicly-held company or the like headquartered offshore.

 

Article 18. - This ruling takes effect on the date of its publication in the Official Gazette of the Federal Executive.

 

JOSÉ LUIZ OSORIO DE ALMEIDA FILHO

Chairman