Circular Letter CVM/SRE 06/23

SECURITIES AND EXCHANGE COMMISSION OF BRAZIL
Rua Sete de Setembro, 111/2-5th and 23-34th Floors, Center, Rio de Janeiro/RJ – ZIP: 20050-901 – Brazil - Tel.: (21) 3554-8686 Rua Cincinato Braga, 340/2nd, 3rd and 4th Floors, Bela Vista, São Paulo/ SP – ZIP: 01333-010 – Brazil - Tel.: (11) 2146-2000 SCN Q.02 – Bl. A – Ed. Corporate Financial Center, S.404/4th Floor, Brasília/DF – ZIP: 70712-900 – Brazil - Tel.: (61) 3327-2030/2031 www.cvm.gov.br Circular Letter No. 6/2023-CVM/SRE Rio de Janeiro, May 10, 2023 Subject: General guidelines on procedures to be observed by intermediary institutions in applications for registration as coordinators of public distribution offerings of securities.

Dear Director,

This Circular Letter aims to guide intermediary institutions regarding the application for registration as coordinator of public distribution offerings of securities in accordance with CVM Resolution No. 161/2022 (“RCVM 161”).
Observance of the following guidelines will contribute to minimizing potential deviations and, consequently, to reducing the need for consultations with the regulator or the formulation of requirements by the SRE.
This document consolidates the guidelines provided by the SRE regarding RCVM 161 in previous circular letters, including the guidelines of Circular Letter No. 4/2022-CVM/SRE (“Circular Letter 04/22”), published on 03/24/2023. The new guidelines are highlighted in yellow.

I – Of the registration application:

We alert that the 180-day period referred to in Article 23 of RCVM 161 ends on 07/01/2023, a little more than 3 months from the publication of this Circular Letter. Intermediaries that have not applied for registration as coordinator of public offerings by this date will not be able to act in the coordination of public offerings distributed in accordance with CVM Resolution No. 160/2022 (“RCVM 160”) until they obtain the respective coordinator registration.
As established in Article 6 of RCVM 161, the application for registration as coordinator of public offerings must be sent to the Securities Registration Superintendence – SRE.
Article 8 of RCVM 161 provides for the possibility of CVM signing a technical cooperation agreement for the prior analysis of the registration applications referred to in Article 6 of the same resolution. In this context, CVM signed an agreement (“ACT”) with ANBIMA - ASSOCIATION OF THE BRAZILIAN FINANCIAL AND CAPITAL MARKETS ENTITIES, for the registration and supervision of public distribution offerings of securities and their coordinators within the scope of RCVM 160 and RCVM 161.
The aforementioned ACT provides for the provision of subsidies for the analysis of this Autarchy in applications for registration of coordinators of public distribution offerings of securities, as provided for in Article 8 of the Resolution.
We communicate that from January 2, 2023, the submission of coordinator registration applications must be made through the Market Supervision System (SSM) of ANBIMA, accessed at https://ssm.anbima.com.br.
The analysis of registration applications will be conducted in observance of the deadlines established in RCVM 161. In the analysis stages, the deadline will be divided between ANBIMA and CVM, in accordance with the ACT, with the certainty that (i) ANBIMA will have a maximum period of 50 (fifty) days to carry out the procedures assigned to it; and (ii) CVM will be assured a period of 10 (ten) days to carry out the procedures assigned to it, in consonance with the provisions of Article 8, § 5 of RCVM 161. If ANBIMA concludes its routine in less than 50 (fifty) days, the remaining period may be used by CVM (i.e., CVM will count with the unused balance by ANBIMA, in addition to its 10 (ten) regulatory days), always respecting the total period of 60 (sixty) days stipulated by RCVM 161 for the conclusion of the procedure.
National, state, or municipal holidays in Rio de Janeiro, headquarters of CVM, will not be counted as business days for the calculation of the deadline.
Also, cases of force majeure and fortuitous events, as provided for in national legislation, will not be counted as business days for the calculation of the deadline.
The submission of new documents or resubmission of documents with more updated versions after the initial protocol or after compliance with requirements, that is, when the analysis of the registration application by ANBIMA or CVM is underway, will be interpreted as a new protocol and restart the analysis period of the current phase.
If, in addition to the information and documents presented in compliance with the requirements, relevant changes have been made to documents or information that do not result from compliance with requirements, the provisions of Article 7, § 6 and § 7 of RCVM 161 must be observed, characterizing the occurrence of a new fact.
Furthermore, in order to assist interested parties in obtaining registration, we indicate accessing the SSM system user manuals available on the ANBIMA website.
Finally, we clarify that being an ANBIMA member or adhering to the entity's Public Offerings Code is not a condition for obtaining registration as Coordinator of Public Offerings.
We highlight that non-financial institutions registered as Coordinators of Public Offerings may only act as coordinators in public offerings subject to the automatic registration procedure if they are subject to supervision by a self-regulatory entity that has signed a specific technical cooperation agreement with CVM, in accordance with Article 3, § 1 of RCVM 161. We inform that so far CVM has not signed a specific technical cooperation agreement for supervision with any self-regulatory entity, which will be duly disclosed by SRE when it occurs.
In a meeting of the CVM/ANBIMA Agreements Technical Group – Public Offerings held on April 3, 2023, the beginning of coordination of supervision efforts and information exchange between CVM and the self-regulatory entity ANBIMA for non-financial institutions was defined, as provided in the ACT. Thus, these institutions will be authorized to carry out public offerings through the automatic procedure, Section II of RCVM 160, from adherence to ANBIMA's Self-Regulation Codes that provide for the activity of coordination of public offerings.

II – Of the delivery of periodic information referred to in Articles 12 and 18 of RCVM 161:

The annual periodic information, (i) reference form, the content of which must reflect all 6 (six) items of Annex B as determined in Article 12 of RCVM 161 and (ii) internal controls report of Article 18 of the same resolution, must be delivered in the year following the year in which the coordinator of public offerings obtained approval of its registration with CVM, considering the date of publication of the declaratory act in the Official Gazette of the Union.
We emphasize that the provision of information from item 6 of Annex B, as established by Annex A of RCVM 161, is not necessary at the time of the application for registration of coordinator of public distribution offerings of securities. It is necessary to send it only at the time of compliance with Article 12 of the Resolution.
The information related in the previous paragraph must be provided from the year following the obtaining of registration, even if this occurs, for example, only in the month of December.
These periodic information must be sent, through an electronic system available on the CVM website on the worldwide web. The link to the system will be available in the CVMWeb menu.

III – Of the minimum net worth:

The coordinator must prove, at the time of the registration application, that it has a minimum net worth of R$ 1 (one) million, by presenting financial statements audited by an independent auditor registered with CVM. If the institution has not closed its first fiscal year, an interim financial statement, also audited, must be sent in order to provide proof of the minimum net worth.

IV – Of the segregation of activities:

Item I of the sole paragraph of Article 19 states that “the exercise of intermediation of public distribution offerings of securities must be segregated from other activities carried out by the coordinator itself or by other legal entities of its economic group with which there is a potential conflict of interests”.
With regard to this, in addition to the areas described in item II of § 1 of Article 4, it is up to the coordinator to identify which areas could affect the independence of its performance as a coordinator of public distribution offerings of securities.

V – Of the non-requirement of director certification:

Item 5.4.1, b, of Annex B of Resolution CVM No. 161/22, that is, approval in a professional certification exam, is not a mandatory item.

VI – Of the Registration Fee:

To make the payment of the registration fee, the applicant must access the internet page https://cvmweb.cvm.gov.br/SAR/FormPesqGRU.aspx, fill in its CNPJ (only with digits) in the field referring to Initial Registration and click on “Search”.
In the next window, under “Fee Type”, the option referring to Annex V must be selected. Under “Registration Type”, the option “Coordinators of Securities Offerings” must be chosen.
Check in the net worth ranges published in the form indicated in the link above, the one in which the net worth of your company would be classified according to its most recent annual financial statement audited by an independent auditor registered with CVM.
We reinforce that at the time of the registration application protocol, the registration fee must already be paid when requesting registration through SSM.

VII – Of the responsible directors:

After the completion of the prior analysis referred to in Section I of this circular by ANBIMA, a technical report will be sent to SRE, which in turn must manifest itself regarding the approval or disapproval of the request.
When sending its technical report to SRE, ANBIMA will keep at CVM's disposal the information and documents that based its report, including information regarding the responsible directors.
Therefore, in case SRE understands in favor of the approval of the registration application for coordinator of public offerings, the Superintendence (GER-3) will register the Coordinator and its directors in the CVM Coordinators System.

VIII – Of access to the Coordinators system:

In addition to serving as a tool for the registration of coordinators, the Coordinators System will also be the means used to request registration changes or cancellation, in accordance with Articles 12 and 18 of RCVM 161.
For the coordinator to access the aforementioned CVM system, it will be necessary for its directors to register in the CVMWeb system.
Once registered, to access the Coordinators System, the responsible directors will need to go to the section of the CVM website called SYSTEMS and (i) click on “Registration Update”, (ii) log in to CVMWeb and (iii) access the system “Coordinator of Securities Offerings”.

IX – Of the scope of performance as a registered Coordinator:

We clarify that the registration referred to in RCVM 161 authorizes registered institutions to act exclusively as coordinators of public distribution offerings of securities distributed by the procedures defined in CVM Resolution No. 160/2022.
This authorization does not allow the regulated entity to act as an intermediary in any other modality of distribution of securities, whether primary or secondary, carried out in a stock exchange, commodities and futures exchange, organized over-the-counter market or unorganized over-the-counter market.

X – Of the restrictions on accumulation of functions by responsible directors:

Item II of § 1 of Article 4 of RCVM 161 aims to remove potential conflicts of interest in the accumulation of functions by the directors responsible for public offerings intermediation activities and for compliance with rules, policies, procedures and internal controls.
Thus, in its wording, the device cites, in an exemplary manner, functions that could not be accumulated, precisely because they characterize a situation of potential conflict of interests and reduction of independence, such as (i) administration of securities portfolios, (ii) securities consulting and (iii) fiduciary agent activity.
The resolution took care to cite these segregations to curb possible conflicts of interest between the activities of structuring and dissemination of public offerings and those related to investment decision-making. Thus, it is necessary to explain the reasoning below with regard to securities distribution activities.
Securities distribution activities must be limited to the approach of investors and the dissemination of information regarding the securities for which it has been contracted to distribute, without making any value judgment.
Additionally, the dissemination material used by the distributor must follow CVM regulations, as well as, when distributing a public offering, the coordinator is prohibited from disclosing to its clients any information to which it has had restricted access and that is not within the reach of other distributors not belonging to the offering coordination pool, in order to comply with the requirement provided for in Article 12, § 2, III of RCVM 160 which determines equity of access to information to all investors of the offering.
Based on this understanding, it is not necessary to separate the areas of public offering coordination and securities distribution, and it is even possible for the director responsible for RCVM 161 to also be the director responsible for CVM Resolution No. 35, of May 26, 2021.
However, it is up to the regulated entity to evaluate which organizational structure would be most suitable for its reality, so that it is possible to detect and curb potential conflicts of interest that would be more likely in the case of the accumulation of coordination and securities distribution functions.
Finally, if the coordinator of public offerings exercises treasury or proprietary trading desk activities, the directors responsible for these areas should not be the same as those for RCVM 161 due to a clear conflict of interest between the functions.

XI – Of the performance of the same natural person in more than one public offering coordinating institution:

There is no impediment for the directors responsible (i) for the public offerings intermediation activity and (ii) for compliance with rules, policies, procedures and internal controls of RCVM 161 to exercise the same functions in controlling, controlled, affiliated or commonly controlled companies.
However, it may be considered an infraction of item II of § 1 of Article 4 of RCVM 161 if a natural person occupies one of the director positions provided for in RCVM 161 and, at the same time, acts in another institution as a director responsible for one of the areas with conflict of interest.

XII – Of portfolio managers and securitization companies:

RCVM 161 maintained the possibility of portfolio managers carrying out the public distribution of securities issued by funds administered or managed by them and of securitization companies carrying out the public distribution of securities of their own issuance, according to regulations established in CVM resolutions that specifically deal with these regulated entities, respectively, CVM Resolution No. 21 (RCVM 21) and CVM Resolution No. 60 (RCVM 60), without requiring such participants to obtain registration as coordinator of public offerings.
Thus, such participants, since they are not covered by RCVM 161 (Article 1, sole paragraph, IV), are not subject to the transition rule provided for in Article 23 of RCVM 161 to carry out the public offerings of securities described in the previous paragraph.
Finally, it is worth noting the need for such participants (i) to respect the rules described in specific norms - RCVM 21 and RCVM 60 – in the conduct of public offerings of securities, (ii) to carry out the distribution of securities in accordance with RCVM 160 and (iii) to respect RCVM 161 specifically with regard to conduct rules, as determined in specific regulation (Article 33, item I, letter “e” of RCVM 21 and Article 43, item I, letter “d” of RCVM 60).

XIII – Of Coordinators that do not have a board of directors in their corporate structure:

In the absence of a board of directors, the responsibilities mentioned in Article 4, § 2 of RCVM 161 may be carried out in board of directors or partners meetings, through minutes recording, provided that such documents are registered with the competent authority.

XIV – Of hiring autonomous investment agents / investment advisors:

The registration as coordinator of public distribution offerings of securities of NON-financial institutions, in accordance with Article 3, II of RCVM 161, does not allow, under any circumstances, for these non-financial institutions registered as coordinators of public offerings to hire Autonomous Investment Agents (“AAI”) or Investment Advisors (“AI”), as they will be called from July 1, 2023, with the entry into force of CVM Resolution No. 178/2023 and revocation of CVM Resolution No. 16/2021.
The AAIs or AIs are linked to their own regulatory and self-regulatory system, CVM Resolution No. 35/2021 (RCVM 35), which disregards NON-financial institutions. These institutions are not covered in several provisions of RCVM 35, such as, for example, (i) the supervision of the self-regulator ANCORD, (ii) the specific supervision of the self-regulator BSM over the acts practiced by these AAIs or AIs, and (iii) the obligations of the intermediary to supervise the structures and internal controls of the AAI or AI.
Nothing prevents, however, that AAIs or AIs act in public offerings of securities coordinated by public offering coordinators that are not financial institutions, as long as contacted by financial institutions participating in the distribution consortium.

XV – Of the automatic registration of offerings by a coordinator that is not a financial institution:

The non-financial institution may carry out public offerings through the automatic procedure, Section II of RCVM 160, if it is an institution participating in ANBIMA's Self-Regulation Codes that provide for the activity of coordination of public offerings, given the provisions of paragraph 17 above.
If additional clarifications are needed, contact the Registration Management 3 – GER-3, through the electronic address ger-3@cvm.gov.br.

Sincerely,

LUIS MIGUEL R. SONO
Superintendent of Securities Registration

Document electronically signed by Luis Miguel Jacinto Mateus Rodrigues Sono, Superintendent of Registration, on 05/10/2023, at 16:49, based on Article 6 of Decree No. 8.539, of October 8, 2015.
The authenticity of the document can be checked on the site https://super.cvm.gov.br/conferir_autenticidade, informing the verification code 1776397 and the CRC code 9E87C083.
This document's authenticity can be verified by accessing https://super.cvm.gov.br/conferir_autenticidade, and typing the "Verification Code" 1776397 and the "CRC Code" 9E87C083.
Reference: Process No. SRE Circular Letters 2023 SEI Document No. 1776397

Circular Letter CVM/SRE 06/23

Lineage: In force

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