On February 19th , 2011, the Brazilian Securities and Exchange Commission (“CVM”) issued “CVM Deliberation 809”, which provides for a waiver of public offerings of securities prior to disclosure of the company’s financial statements, and temporarily establishes the possibility of reserved analysis for applications for the registration of public offers for the distribution of shares and registration of issuers of securities admitted to trading (“Deliberation”).
The Deliberation is part of the “Strategic Project to Reduce Costs of Compliance”, which was started in November 2017 and seeks to increase the attractiveness of fund raising through the securities market.
In this regard, the “CVM Board” resolved as follows:/p>
- authorize the Superintendence of Securities Registry (“Superintendência de Registro de Valores Mobiliários” – “SRE”) to grant registration of public offers for the distribution of securities during the period mentioned in art. 14, paragraph 4, of “CVM” Instruction 400/2003 (16 days prior to the disclosure of financial information of companies), eliminating so-called “market windows”;
- in the case of a subsequent offer registration request that the issuer wishes to make in a reserved manner, the issuer must indicate the period during which such information should be kept confidential if there is withdrawal or rejection;
- the issuer must declare the justification for the secrecy of the requests and the reasons why their disclosure may represent a competitive advantage to other economic agents or jeopardize the legitimate interest of the company and, once this declaration is presented, the reserved treatment will necessarily deferred by the technical areas;
- in those cases in which the reserved analysis request is adopted, (a) the entities managing the organized markets in which the shares subject to the public offer of distribution will be admitted to trading shall also adopt procedures to ensure the confidentiality of the registration analysis request of public offers; and (b) self-regulating entities conducting prior analyzes under the simplified procedure referred to in “CVM” Instruction 471/2008 should also adopt procedures that guarantee the confidentiality of their analysis processes, with the offeror requesting the reserved analysis exempt from disclosure referred to in art. 7 of “CVM” Instruction 471/2008; and
- If it is found that the information regarding the request for registration of the public offer of distribution in reserved analysis has escaped control, the issuer shall proceed to the immediate disclosure of a material fact in respect, if already registered, as well as to inform of such fact to the Superintendence of Securities Registry (“Superintendência de Registro de Valores Mobiliários” – “SRE”) and to the Superintendence of Relations with Companies – (“Superintendência de Relações com Empresas” – “SEP”), so that the registration requests are publicized, without prejudice to the evaluation of possible liabilities and the possible suspension of the analysis of the request for the offer.
Further information, as well as the full text of the Deliberation and Circular Letters, can be found on the “CVM” website (http://www.cvm.gov.br/).