EXHIBIT 1.1
[FORM OF EXCHANGE AGENT AGREEMENT]
EXCHANGE AGENT AGREEMENT
[-], 2005
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Banco Bradesco S.A., a corporation organized under the laws of Brazil (the
"Company") proposes to make an offer (the "Exchange Offer") to exchange its
outstanding 8.875% Perpetual Non-cumulative Junior Subordinated Securities (the
"Old Securities") for its 8.875% Perpetual Non-cumulative Junior Subordinated
Securities (the "New Securities"), in an offering registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Old Securities
and New Securities are collectively referred to herein as the "Securities." The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus dated [-], 2005 (the "Prospectus"), proposed to be
distributed to all record holders of the Old Securities.
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
[-], 2005. The Letter of Transmittal accompanying the Prospectus (or, in the
case of book-entry securities, the Automated Tender Offer Program ("ATOP") of
the Book-Entry Transfer Facility (as defined below)) is to be used by the
holders of the Old Securities to accept the Exchange Offer, and contains certain
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, [-],
2005 or on such later date or time to which the Company may extend the Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Company expressly reserves the right to extend the Exchange
Offer from time to time and may extend the Exchange Offer by giving oral
(promptly confirmed in writing) or written notice to you before 9:00 a.m., New
York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the section "This
Exchange Offer - Conditions to this Exchange Offer." The Company will give oral
(promptly confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
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1. You will perform such duties and only such duties as are specifically set
forth in the section of the Prospectus captioned "This Exchange Offer" or
as specifically set forth herein; provided, however, that in no way will
your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Securities at the
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the
Old Securities by causing the Book-Entry Transfer Facility to transfer
such Old Securities into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates of
Old Securities (or confirmation of book-entry transfer into your account
at the Book-Entry Transfer Facility), and any other documents delivered or
mailed to you by or for holders of the Old Securities to ascertain
whether: (i) the Letters of Transmittal and any such other documents are
duly executed and properly completed in accordance with the instructions
set forth therein; and (ii) the Old Securities have otherwise been
properly tendered. In each case where the Letter of Transmittal or any
other document has been improperly completed or executed, any of the
certificates for Old Securities are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange
Offer exists, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of two executive directors, one of which being a
vice-president (such approval, if given orally, to be promptly confirmed
in writing) or any other party designated in writing by such an officer ,
you are authorized to waive any irregularities in connection with any
tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the section of
the Prospectus captioned "This Exchange Offer -- Procedures for Tendering
the Existing Securities", and Old Securities shall be considered properly
tendered to you only when tendered in accordance with the procedures set
forth therein.
Notwithstanding the provisions of this Paragraph 5, Old Securities which
the executive directors of the Company shall approve as having been
properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Old Securities received
subsequent to the Expiration Date and accept its instructions with respect
to disposition of such Old Securities.
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7. You shall accept tender:
(a) in cases where the Old Securities are registered in two or more
names, only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity,
only when proper evidence of his or her authority to so act is
submitted; and
(c) from persons other than the registered holder of Old Securities,
provided that customary transfer requirements, including payment of
any applicable transfer taxes, are fulfilled.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Securities properly tendered; and you, on
behalf of the Company, will exchange such Old Securities for New
Securities and cause such Old Securities to be canceled. Delivery of New
Securities will be made on behalf of the Company by you at the rate of
$1,000 principal amount of New Securities for each $1,000 principal amount
of the Old Securities tendered promptly after notice (such notice, if
given orally, to be promptly confirmed in writing) of acceptance of said
Old Securities by the Company, provided, however, that in all cases, Old
Securities tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificate for such Old Securities or
confirmation of book-entry transfer into your account at the Book-Entry
Transfer Facility, or a properly completed and duly executed Letter of
Transmittal (or manually signed facsimile thereof) with any required
signature guarantees and any other required document. You shall issue New
Securities only in denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Securities tendered
if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (if given orally, to be promptly confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus
under the caption "The Exchange Offer -- Conditions to the Exchange Offer"
or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted
12. Old Securities (or effect the appropriate book-entry transfer), together
with any related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited
them. All certificates for reissued Old Securities, unaccepted Old
Securities or for New Securities shall be forwarded by first-class
certified or first-class registered mail.
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13. You are not authorized to pay or offer to pay any concessions,
commissions, solicitation fees to any broker, dealer, bank or other
persons or to engage or utilize any persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless the
same constitutes your own gross negligence, willful misconduct or
bad faith, and in no event shall you be liable to a securityholder,
the Company or any third party for special, indirect or
consequential damages, or lost profits, arising in connection with
this Agreement;
(b) shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates or the Old Securities
represented thereby deposited with you pursuant to the Exchange
Offer, and will not be required to and will make no representation
as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity
satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and which
you in good faith reasonably believe to be genuine and to have been
signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document, agreement,
certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also
as to the truth and accuracy of any information contained therein,
which you shall in good faith believe to be genuine or to have been
signed or presented by the proper person or persons;
(g) may conclusively rely on and shall be protected in acting upon
written or oral instructions promptly confirmed in writing from any
authorized officer of the Company;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the
advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by you hereunder in good faith and
in accordance with the advice or opinion of such counsel;
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(i) shall not advise any person tendering Old Securities pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Old
Securities; and
(j) shall in no event be responsible or liable for any failure or delay
in the performance of your obligations under this Agreement arising
out of or caused by, directly or indirectly, forces beyond your
reasonable control, including without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military
disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or
computer (software or hardware) services.
15. You shall take such action as may from time to time be requested by the
Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery (as defined in the Prospectus) or such other forms as
may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests
for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with
copies of such documents on your request. All other requests for
information relating to the Exchange Offer shall be directed to:
Banco Bradesco S.A. - International Department
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Sao Paulo, S.P.
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Telephone: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
16. You shall advise by facsimile transmission or telephone, and promptly
thereafter, confirm in writing to:
Banco Bradesco S.A. - International Department
Telephone: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
and such other person or persons as the Company may request, daily (and
more frequently during the week immediately preceding the Expiration Date
if reasonably requested) up to and including the Expiration Date, as to
the number of Old Securities which have been tendered pursuant to the
Exchange Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals as to items properly
received and items improperly received. In addition, you will also inform,
and cooperate in making available to, the Company or any such other person
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or persons upon oral request made from time to time prior to the
Expiration Date of such other information as they may reasonably request.
Such cooperation shall include, without limitation, the granting by you to
the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order
to ensure that immediately prior to the Expiration Date the Company shall
have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of
all persons whose tenders with respect to the DTC portion were accepted,
the aggregate principal amount of Old Securities tendered, the aggregate
principal amount of Old Securities accepted and deliver said list to the
Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped
by you as to the date and, after the expiration of the Exchange Offer, the
time, of receipt thereof and shall be preserved by you for a period of
time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused
Letters of Transmittal and other surplus materials by returning them to
the Company.
18. For services rendered as Exchange Agent hereunder, you shall be entitled
to such compensation as shall be agreed in writing between the Company and
you. The provisions of this section shall survive the termination of this
Agreement.
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them to
the extent that they relate to your duties hereunder. Any inconsistency
between this Agreement, on the one hand, and the Prospectus and the Letter
of Transmittal (as they may be amended from time to time), on the other
hand, shall be resolved in favor of the latter two documents, except with
respect to your duties, liabilities and indemnification as Exchange Agent.
20. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent against any and all loss, liability, cost
or expense, including reasonable attorneys' fees and expenses, incurred
without gross negligence or willful misconduct on your part, arising out
of or in connection with the acceptance or administration of your duties
hereunder, including, without limitation, any act, omission, delay or
refusal made by you in reasonable reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction
or other instrument or document reasonably believed by you to be valid,
genuine and sufficient and in accepting any tender or effecting any
transfer of Old Securities believed by you in good faith to be authorized,
and in delaying or refusing in good faith to accept any tenders or effect
any transfer of Old Securities provided, however, that the Company shall
not be liable for indemnification or otherwise for loss, liability, cost
or expense to the extent arising out of your gross negligence, willful
misconduct or bad faith. In each case, the obligations of the Company in
this Section 20 are conditional upon the Company having been notified by
you, by letter or facsimile transmission, of the written assertion of a
claim against you or of any other action commenced against you, such
notification to be made promptly after you shall have received any such
written assertion or shall have been served with a
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summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other
action and, if the Company so elects, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event that the
Company shall assume the defense of any such suit, the Company shall not
be liable for the fees and expenses of any additional counsel thereafter
retained by you, so long as the Company shall retain counsel satisfactory
to you to defend such suit. You shall not compromise or settle any such
action or claim without the consent of the Company. The provisions of this
section shall survive the termination of this Agreement.
21. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service.
22. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Securities, the Company's check in the amount of
all transfer taxes so payable; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your payment of any
such transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder shall be
construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within
such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified, amended,
rescinded, cancelled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed
to it, at its address or telecopy number set forth below:
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If to the Company:
Banco Bradesco S.A. - International Department
▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇, 10(degrees) Andar
Sao Paulo, S.P.
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Telephone: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ Chance US LLP
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
If to the Exchange Agent:
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
28. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 18 and 20 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Securities, funds or property
then held by you as Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
BANCO BRADESCO S.A.
By:_______________________________
Name: [-]
Title: [-]
By:_______________________________
Name: [-]
Title: [-]
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:_____________________________
Name: [-]
Title: [-]
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