CVM Instruction No. 559 (Repealed) - Approval of Depositary Receipt Programs for Trading Abroad

SECURITIES COMMISSION OF BRAZIL
Rua Sete de Setembro, 111/2-5th and 23-34th Floors – Center – Rio de Janeiro - RJ – ZIP Code: 20050-901 – Brazil Tel.: (21) 3554-8686 - www.cvm.gov.br CVM INSTRUCTION NO. 559, OF MARCH 27, 2015 Provides for the approval of Depositary Receipt programs for trading abroad.

THE PRESIDENT OF THE SECURITIES COMMISSION - CVM makes public that the Collegiate Board, in a meeting held on March 11, 2015, and based on the provisions of Art. 1, item I; Art. 8, item I; and Art. 18, item II, letter "a", of Law No. 6.385, of December 7, 1976, and Art. 5 of Regulation Annex II to CMN Resolution No. 4.373, of September 29, 2014, APPROVED the following Instruction:

CHAPTER I – DEPOSITARY RECEIPT PROGRAMS
Section I – Definitions
Art. 1. For the purposes of this Instruction, the following are understood by:
I – Depositary Receipts – DR: certificates issued abroad by a depositary institution, representative of assets authorized in specific regulation issued by the National Monetary Council – CMN, deposited in specific custody in the Country; II – custodian institution: the institution authorized by the CVM to provide custody services; III – depositary institution: the institution that, abroad, and based on the assets referred to in item I, issues the corresponding DRs; and IV – sponsoring company: the issuer headquartered in the Country of the assets mentioned in item I subject to the DR program and signatory of a specific contract with the depositary institution for the issuance of DRs.

Section II – General Rules
Art. 2. The DR program depends on approval by the CVM.
§1º DR programs may be backed by assets authorized in specific regulation issued by the CMN, observing the registration category in which the securities issuer is registered with the CVM. §2º The approval of the DR program may be requested by:
I – the custodian institution; or
II – the sponsoring company.

Art. 3. The DR program may be:
I – sponsored; or
II – unsponsored.
§ 1º A sponsored DR program is one established by a single depositary institution, contracted by the issuer of the assets that back the certificates.
§ 2º An unsponsored DR program is one established at the initiative of one or more depositary institutions, with the manifestation of no objection from the issuer of the assets that back the certificates, in accordance with §2º of Art. 5 of this Instruction.

Section III – Approval of Depositary Receipt Programs
Art. 4. The approval of a DR program will be granted automatically.
Art. 5. The request for automatic approval must be sent to the Securities Registration Superintendency – SRE and accompanied by the following documents:
I – contract between the custodian institution and the depositary institution; II – agreement entered into between the entities administering national and foreign organized markets that provides for the trading of securities involved in a DR program, in cases where the receipts are intended for trading in an organized market abroad; III – authorization from the Central Bank of Brazil in case of a DR program backed by assets issued by a financial institution headquartered in the Country; and IV – declaration, signed by a statutory director of the custodian institution, confirming the validity and regularity of the documents referred to in items I to III of this article. §1º If the DR program is sponsored, the approval request must also be accompanied by:
I – the contract between the sponsoring company and the depositary institution; and II – the declaration, signed by a statutory director of the issuer of the assets that back the certificates, confirming the validity and regularity of the documents referred to in item III of the caput and in item I of this §1º. §2º If the DR program is unsponsored, the approval request must also be accompanied by the manifestation of no objection from the issuer of the assets that back the certificates. §3º Documents drafted in a foreign language must be presented together with their sworn translation into the national language.

Art. 6. The request for automatic approval will take effect five (5) business days after the protocol of the request at the CVM.
Art. 7. The request for modification of the conditions of a DR program must be sent to the Securities Registration Superintendency – SRE and shall comply with the conditions established in Art. 3 and Art. 5 of this Instruction.

CHAPTER II – PARTICIPATION IN ASSEMBLY
Art. 8. The issuer of shares that serve as backing for a sponsored DR program must convene a general assembly with a minimum notice period of 30 (thirty) days in advance.
Sole Paragraph. Compliance with the provision in the caput is waived in cases where the species or class of shares that back the certificates has no voting right on any of the matters contained in the agenda of the respective assembly.

Art. 9. The voting right of the shares that serve as backing for a DR program must be exercised by the depositaries in the manner instructed by the DR holders whenever the contracts relating to the program allow, or in the best interest of the DR holders, when such contracts prevent voting as instructed by them.

CHAPTER III – FINAL PROVISIONS
Art. 10. Non-compliance with Art. 8 and the presentation of documents to support the request for approval of a DR program in disagreement with the declarations provided for in Art. 5, IV and §1º, II, of this Instruction, is considered a serious offense, for the purposes of the provision of Art. 11, § 3º, of Law No. 6.385, of December 7, 1976.

Art. 11. Art. 8 of this Instruction enters into force 90 days after the date of publication.
Art. 12. This Instruction enters into force on the date of its publication.
Art. 13. On the date this Instruction enters into force, the following are repealed:
I – CVM Instruction No. 317, of October 15, 1999; II – CVM Instruction No. 334, of April 6, 2000; and III – CVM Instruction No. 342, of July 13, 2000.

Original signed by
LEONARDO P. GOMES PEREIRA
President