Modelo de Contrato para a Prestação de Serviços de Formador de Mercado (Cláusulas Mínimas) Model of Agreement of Accreditation for the Market Maker Activity (Minimum Clauses)
Modelo de Contrato para a Prestação de Serviços de Formador de Mercado (Cláusulas Mínimas)
Model of Agreement of Accreditation for the Market Maker Activity (Minimum Clauses)
Pelo presente instrumento particular e na melhor forma de direito, as partes: [●], sociedade com sede na [●], inscrita no CNPJ/MF sob o n° [●], neste ato representada na forma do seu estatuto social (Companhia)1; [●], sociedade com sede na [●], inscrito no CNPJ/MF sob o nº [●], neste ato representada na forma do seu estatuto social (Formador de Mercado); [[●], sociedade com sede na [●], inscrito no CNPJ/MF sob o nº [●], neste ato representada na forma do seu estatuto social (Intermediário)]2; A Companhia e o Formador de Mercado serão denominados neste Contrato de Prestação de Serviços de Formador de Mercado (Contrato), em conjunto, Partes ou, individualmente e indistintamente, Parte. As Partes resolvem celebrar o Contrato que será regido pelas seguintes cláusulas e condições:
Irrevogabilidade, Irretratabilidade e Cessão
Renúncia ou Novação
Validade
Alteração
Caso fortuito ou força maior
Lei aplicável
Mandato
Lei Anticorrupção
E, por estarem justas e contratadas, as Partes assinam este Contrato em 2 (duas) vias de igual teor e forma, para um só efeito, na presença das 2 (duas) testemunhas abaixo identificadas. São Paulo, [dd] de [mm] de [aaaa].
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By this particular instrument and in the best form of law, the parties:
[●], company headquartered in [●], enrolled with the CNPJ/MF under no. [●], herein represented in the form of its By-laws (Company)1;
[●], company headquartered in [●], enrolled with the CNPJ/MF under no. [●], represented herein in the form of its By-laws (Market Maker);
[[●], company headquartered in [●], enrolled with the CNPJ/MF under no. [●], herein represented in the form of its By-laws (Intermediary)]2;
The Company and the Market Maker shall be referred to in this Agreement of Accreditation for the Market Maker Activity (Agreement) jointly as Parties or, individually and without distinction, as Party.
The Parties agree to enter into the Agreement which shall be governed by the following terms and conditions:
1. OBJECT 1.1. The present Agreement has as its object the Market Maker Activity in the stock market managed by B3 S.A. - Brasil, Bolsa, Balcão (B3), through the buy and sell orders in order to promote liquidity for the following securities (Securities):
2. DECLARATIONS BY THE COMPANY AND BY THE MARKET MAKER 2.1. The Company and the Market Maker hereby declare, for all legal purposes, that it is aware, agrees and adheres to the entire contents and conditions set forth in the rules and procedures established in CVM Instruction 384, of March 17, 2003; in the Regulation for Accreditation of Market Makers attached to Circular Letter 004/2012-DN, of March 15, 2012; in the Circular Letter 109/2015-DP, of October 08, 2015; and the Circular Letter 106/2016-DP, dated November 8, 2016, as well as in the other applicable rules and procedures on the exercise of its activities disclosed by B3 (Regulations).
2.1.1. Any amendments to the Regulations or the publication of subsequent rules that shall replace the current Regulations shall apply automatically, regardless any additions to this Agreement.
2.2. The Market Maker undertakes to act strictly in compliance with the Regulations and to maintain high ethical standards of conduct in its role as a Market Maker and other activities associated with its performance in the securities market.
2.3. The Company declares that there is no agreement or agreement entered into with the Market Maker regulating the exercise of voting rights or the acquisition and sale of securities issued by the Company.
2.4. The Company declares that the number of Securities in circulation is the same as stated on the Company's Reference Form.
3. THE MARKET MAKER'S ACTIVITIES 3.1. The Market Maker undertakes to register, daily during the trading session, the buy and sell offers, respecting: (i) the minimum lot disclosed by B3, through its usual means of communication; and (ii) the following parameters (Parameters):
3.2. Offers from the Market Maker will compete on equal terms with the other market offers, including those from other market makers, according to the criteria for acceptance, clearing and settlement of transactions, as set out in B3 rules and procedures.
4. ACCESS TO RELEVANT INFORMATION 4.1. The Market Maker shall not be hired if it is a controlling, controlled or associated company or it is under common control of the Company.
4.2. The Market Maker undertakes to adopt all necessary measures to segregate access to relevant information related to the Securities and to the Company. Segregation shall include, but is not limited to, the companies of the same economic group, such as subsidiaries, controlling companies and associates, in order to strictly comply with the applicable legal and regulatory standards.
4.3. In the event of obtaining access to relevant information, the Market Maker should not carry out the activities for the securities object of this Agreement, and must notify B3 immediately.
4.4. The Market Maker may request the cancellation of his voluntary accreditation, upon thirty (30) calendar days’ notice to B3, in compliance with the minimum period established in the Circular Letter 109/2015-DP, or any other that shall replace it.
4.5. The Market Maker shall inform B3 of any change in its corporate structure, which implies into a change in its shareholding control, within fifteen (15) business days from the date of its occurrence, in order to comply with the provisions of the Regulation for Accreditation of the Market Marker in the Markets Managed by B3.
5. REMUNERATION 5.1. Due to the services rendered, the Market Maker shall receive from the Company [insert form of remuneration].
5.2. The Market Maker shall not receive any remuneration from B3 as a consideration for the exercise of the Market Maker activity referred to in this Agreement.
6. THE FEES 6.1. Under this Agreement, the Market Maker shall not be subject to the payment of any fees imposed in the buy or sell offers related to the securities in which he is registered to act as Market Maker.
7. RESICION AND TERMINATION 7.1. This Agreement shall also be terminated by the Market Maker in the event of a failure by the Company to comply with any of the obligations set forth in this Agreement or voluntarily, upon a thirty (30) calendar days’ prior notice to B3, in compliance with the minimum period established in Circular Letter 109/2015-DP, or any other that shall replace it.
7.2. This Agreement shall be terminated as of right in the event of a request for judicial recovery, formulation of an extrajudicial recovery plan, intervention, special temporary administration regime, extrajudicial liquidation or bankruptcy of either Party.
7.3. The rescission and/or termination of this Agreement shall result in the automatic de-accreditation of the Market Maker for the activity object of this Agreement.
7.4. The rescission and/or termination of this Agreement and the de-accreditation of the Market Maker indicated in the clause 6 do not imply in the de-accreditation of the Market Maker to act with securities other than those related to the activity object of this Agreement, nor do they affect the activities of the Market Maker contracted by third parties.
8. EFFECTIVENESS 8.1. This Agreement shall enter into force on the date of its signature and shall be effective for [indeterminate term] OR [for the period of [●] ([●]) from the date of its execution.
8.1.1. This Agreement may be rescinded and/or terminated at any time and without any encumbrance by either Party, by prior written notice sent to the other party and to B3, at least thirty (30) days in advance.
9. CONFLICT RESOLUTION 9.1. The Parties shall use their best efforts to achieve the amicable settlement of any dispute arising out from this Agreement or relating to its interpretation or execution. If it is not possible to reach such composition, the parties agree that, within thirty (30) days, they shall submit the dispute to arbitration, to be conducted in accordance with the Arbitration Rules of the Market Arbitration Chamber ("CAM") then in force. The arbitration shall be administered by CAM itself.
9.2. The arbitration established under this item shall be assessed and decided solely on the basis of the laws of Brazil, and its procedures shall be performed in Portuguese, occurring in the Capital of the State of São Paulo.
9.3. The Parties declare that they have taken notice of the CAM’s Regulations and have agreed to all the provisions contained therein. The CAM’s Regulations, in force on the date of signature of this Agreement, and the provisions of Law 9,307/96 are included in this Agreement in what is applicable to it. In the event that the CAM’s Regulations are silent on any procedural aspect, the Parties hereby agree to apply, in that order, the Brazilian procedural laws provided for in Law 9,307/96 and the Brazilian Civil Procedure Code.
9.4. The arbitration award shall be final and unappealable, constituting an enforceable title, judicial for all legal purposes and binding the Parties and their respective successors and assigns.
9.5. The Parties declare that they have full knowledge of all the terms and effects of the arbitration clause herein and are duly represented by their lawyers during the negotiation of the terms of this Agreement, as well as at the time of their signature, and irrevocably agree that arbitration is the only way to resolve any disputes arising out of and/or related to the interpretation of this Agreement and/or its Annex, or related herein, including, but not limited to, questions relating to the existence, validity, termination and contractual execution. Without prejudice to the validity of the other provisions of this clause, the Parties elect the jurisdiction of the district of the Capital of the State of São Paulo, for the exclusive purposes of obtaining a coercive measure or precautionary procedure of a preventive, provisional or permanent nature, as a guarantee to the arbitration procedure to be commenced or under way, or to the effectiveness of such a procedure.
10. GENERAL PROVISIONS
Irrevocability, Irreversibility and Assignment 10.1. This Agreement is executed irrevocably and irreversibly, binding the Parties and their respective successors under any title. The rights and obligations under this Agreement shall not be assigned or transferred in whole or in part by either Party without the prior written consent of the other Party.
Waiver or Novation 10.2. The fact that either Party does not require at any time the performance of any obligation of the other Party shall not be construed as a waiver or novation of any obligation, nor shall affect the right to demand compliance with the other obligations contained in this Agreement.
Shelf life 10.3. Invalidation or nullity, in whole or in part, of any provision of this Agreement shall not affect the others, which shall remain valid and effective until the Parties comply with all their obligations under this Agreement.
Enforceability 10.4. Any amendments to this Agreement, arising from a judicial or administrative order, from the creation or increase of taxes levied on the activities disciplined in this Agreement, including in relation to its term, shall occur only upon the conclusion of an additive term signed by the Parties.
Fortuitous event or force majeure 10.5. The Parties shall not be liable for the total or partial non-performance of this Agreement if they result from unforeseeable circumstances or force majeure.
Applicable law 10.6. This Agreement shall be governed by and construed in accordance with the laws of the Federative Republic of Brazil. Mandate 10.7. Under no circumstance the Market Maker shall be considered, for any purpose, legal representative, agent, designee, partner, associate and/or joint venture of the Company, and shall not, on behalf of it, perform any acts, contracts or assume obligations, nor nothing contained in this Agreement shall constitute a labor relationship or affiliation between the Parties.
Anti-Corruption Law 10.8. The Parties declare and warrant that they are aware of, and understand, the applicable Brazilian anti-corruption laws and regulations, notably the Law No. 12.846/13, and any other subsequent amendments thereto (Applicable Law), and undertake to: (i) national or foreign public administration, as well as refrain from promising, offering, giving, directly or indirectly, by itself or by third party, an undue advantage to a national or foreign public agent, or the third person related to it; (ii) implement appropriate guidelines and controls to prevent and correct deviations, in order to comply with and ensure that its administrators, employees, company and other agents comply with what is determined by the Applicable Legislation; (iii) evidence, from time to time, at B3's request, the existence and effectiveness of these guidelines and controls. Likewise, it undertakes not to impede the activity of investigation or inspection of organs, entities or public agents, or intervene in its activities, including in the scope of the regulatory agencies, and the supervisory bodies of the financial system or the national capital market.
Thereafter, the Parties shall sign two (2) identical counterparts of this Agreement in the presence of the two (2) witnesses identified below.
São Paulo, [Month] [day], [year].
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1 Caso o contratante não seja a companhia emissora dos valores mobiliários, favor substituir o termo definido para “Contratante”, nas referências aplicáveis./ If the contractor is not the company issuing the securities, please substitute the term defined for "Contractor" in the applicable references.
2 Manter apenas no caso de o Formador de Mercado não ser Participante de Negociação Pleno, nos termos do Regulamento de Acesso. Caso Aplicável, incluir também a qualificação do Agente de Compensação. Excluir este comentário/ Maintain only in case the Market Maker is not a Full Trading Participant, pursuant to the Access Regulation. If applicable, also include the qualification of the Clearing Agent. Delete this comment.