CVM Instruction 400 of December 29, 2003 - Public Offerings of Securities

FULL TEXT OF CVM INSTRUCTION NO. 400, OF DECEMBER 29, 2003, WITH THE AMENDMENTS INTRODUCED BY CVM INSTRUCTIONS NOS. 429/06, 442/06, 472/08, 482/10, 488/10, 507/11, 525/12, 528/12, 531/13, 533/13, 546/14, 548/14, 551/14, 566/15, 571/15, 583/16, 584/17, 588/17, 595/18, 600/18, 601/18 AND 604/18 AND CVM RESOLUTIONS NOS. 8/20 AND 61/21.

Provides for the public distribution offerings of securities, in the primary or secondary markets, and revokes CVM Instruction No. 13, of September 30, 1980, and CVM Instruction No. 88, of November 3, 1988.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Board, in a meeting held on December 26, 2003, based on the provisions of arts. 4, item VI, 8, item I and 19, § 5º, and 21 of Law No. 6.385, of December 7, 1976, resolved to issue the following instruction:

SCOPE AND PURPOSE
Art. 1 This Instruction regulates public distribution offerings of securities, in the primary or secondary market, and aims to ensure the protection of the interests of the investing public and the market in general, through equitable treatment of those offered and requirements for broad, transparent, and adequate disclosure of information about the offering, the securities offered, the issuing company, the offeror, and other persons involved.

REQUIREMENT FOR REGISTRATION OF PUBLIC DISTRIBUTION OFFERINGS Art. 2 Every public distribution offering of securities in the primary and secondary markets, within Brazilian territory, directed to natural persons, legal entities, funds, or universality of rights, residing, domiciled, or constituted in Brazil, must be submitted previously for registration with the Securities and Exchange Commission – CVM, in accordance with this Instruction.

§1 Only securities may be traded on a stock exchange or over-the-counter market:
I - securities distributed publicly through a primary or secondary offering registered with the CVM; or

II - securities that have not been publicly subscribed, provided that securities of the same type, class, species, and series are already admitted to trading on a stock exchange or over-the-counter market.

§ 1 REVOKED

• § 1 revoked by CVM Instruction No. 482, of April 5, 2010.

§2 Securities may also be traded on a stock exchange or over-the-counter market that do not fall under the hypotheses of § 1, provided they are previously submitted for registration of trading or its waiver, in accordance with art. 21, items I and II, of Law No. 6.385/76, upon presentation of a prospectus in accordance with this Instruction.

§ 2 REVOKED

• § 2 revoked by CVM Instruction No. 482, of April 5, 2010.

Art. 3 Acts of public distribution include the sale, promise of sale, offer for sale, or subscription, as well as the acceptance of an order for sale or subscription of securities, which contain any of the following elements:
I - the use of lists or sales or subscription forms, brochures, prospectuses, or advertisements, intended for the public, by any means or form; II - the solicitation, in whole or in part, of indeterminate subscribers or acquirers for the securities, even if carried out through standardized communications addressed to individually identified recipients, by employees, representatives, agents, or any natural or legal persons, integrated or not into the securities distribution system, or, furthermore, if in non-compliance with the provisions of this Instruction, the consultation on the viability of the offer or the collection of investment intentions from indeterminate subscribers or acquirers; III - negotiation made in a shop, office, or establishment open to the public intended, in whole or in part, for indeterminate subscribers or acquirers; or IV - the use of advertising, oral or written, letters, announcements, notices, especially through mass media or electronic means (pages or documents on the worldwide web or other open computer networks and email), understood as such any form of communication

directed to the general public with the aim of promoting, directly or through third parties acting on behalf of the offeror or the issuer, the subscription or alienation of securities.

§1 For the purposes of this Instruction, the general public is considered a class, category, or group of people, even if individualized in this capacity, except those who have a prior commercial, credit, corporate, or employment relationship, close and habitual, with the issuer.

§2 The public distribution of securities may only be carried out with the intermediation of institutions integrated into the securities distribution system (“Intermediary Institutions”), except for the hypothesis of specific waiver of this requirement, granted in accordance with art. 4.

§ 2 The public distribution of securities may only be carried out with the intermediation of institutions integrated into the securities distribution system (“Intermediary Institutions”), except for the hypotheses of specific waiver of this requirement, granted in accordance with art. 4.

• § 2 with wording given by CVM Instruction No. 482, of April 5, 2010.

WAIVER OF REGISTRATION OR REQUIREMENTS
Art. 4 Considering the characteristics of the public distribution offering of securities, the CVM may, at its discretion and always observing the public interest, adequate information, and investor protection, waive the registration or some of the requirements, including publications, deadlines, and procedures provided for in this Instruction.

Art. 4 Considering the characteristics of the public distribution offering of securities, the CVM may, at its discretion and always observing the public interest, adequate information, and investor protection, waive the registration or some of the requirements, including disclosures, deadlines, and procedures provided for in this Instruction.

• Caput with wording given by CVM Instruction No. 548, of May 6, 2014.

§ 1 In the waiver mentioned in the caput, the CVM will consider, cumulatively or individually, the following special conditions of the intended operation:
I - the category of open company registration (art. 4, § 3º, of Law No. 6.404, of December 15, 1976);

I - REVOKED

• Item I revoked by CVM Instruction No. 482, of April 5, 2010.

II - the unit value of the securities offered or the total value of the offering; III - the distribution plan of the securities (art. 33, § 3º); IV - the distribution takes place in more than one jurisdiction, in order to harmonize the different procedures involved, provided that, at minimum, equality of conditions with local investors is ensured; V - characteristics of the swap offer; VI - the target audience of the offer, including regarding their geographic location or quantity; or VII - it is directed exclusively to qualified investors.

§2 The request for waiver of registration or of registration requirements shall be formulated by the offeror, and by the intermediary institution, if applicable, in a documented document, in accordance with Annex I, which will contain the justifications identified by the applicants for the granting of the waiver, applying in the analysis the deadlines provided for in arts. 8 and 9.

§3 The presentation of the joint registration request simultaneously with the request for waiver of registration requirements is permitted.

§4 In the case of waiver of registration requirements based on item VII of § 1, the following must additionally be observed:
I - the offeror will present to the CVM, together with the documented request mentioned in § 2 of this article, a model of declaration to be signed by the subscribers or acquirers, as the case may be, which must necessarily state:
a) they have sufficient knowledge and experience in finance and business to assess the risks and content of the offer and are capable of assuming such risks; b) they had wide access to the information they deemed necessary and sufficient for the investment decision, notably those normally provided in the Prospectus; and

c) they are aware that this is a case of waiver of registration or of requirements, as the case may be, and commit to complying with the provision of item III of this paragraph. c) they are aware that this is a case of waiver of registration or of requirements, as the case may be;

• Sub-item “c” with wording given by CVM Instruction No. 482, of April 5, 2010.

II - all subscribers or acquirers of the offered securities will sign the declarations indicated in item I of this paragraph, which must be inserted in the subscription forms or acquisition receipts; II - all subscribers or acquirers of the offered securities will sign the declarations indicated in item I of this paragraph, which must be inserted in the subscription forms or acquisition receipts, or in the adherence and risk awareness term, in the case of offering shares of investment funds; and

• Item II with wording given by CVM Instruction No. 482, of April 5, 2010.

III - the qualified investor who has subscribed or acquired securities based on the waiver of item VII, of § 1 of art. 4, and intends to sell the acquired or subscribed securities to a non-qualified investor before completing 18 (eighteen) months from the end of the distribution may only do so if prior registration of trading in the market, referred to in art. 21 of Law No. 6.385, of 1976, is obtained, unless the acquired securities fall under the hypotheses of § 1 of art. 2 of this Instruction; III - REVOKED

• Item III revoked by CVM Instruction No. 482, of April 5, 2010.

IV - the analysis deadlines provided for in § 3 of art. 13.
IV – without prejudice to the provisions of arts. 8 and 9, the following deadlines apply:
a) analysis deadline: 10 (ten) business days; b) compliance deadline: 10 (ten) business days; and

c) verification of compliance deadline: 5 (five) business days.

• Item IV with wording given by CVM Instruction No. 584, of March 22, 2017.

§ 5 In the cases of waiver of registration or of requirements provided for in this article, the CVM may impose restrictions on the trading of securities in regulated markets.

• § 5 included by CVM Instruction No. 482, of April 5, 2010.

Art. 5 Without prejudice to other hypotheses that will be specifically assessed by the CVM, the public distribution offering:

Art. 5 The following public distribution offerings are not subject to the registration referred to in art. 2:

• Caput with wording given by CVM Resolution No. 61, of December 27, 2021.

I - that deals with CVM Instruction No. 286, of July 31, 1998, which provides for the alienation of shares owned by legal entities of public law and entities controlled directly or indirectly by the Public Power and waives the registrations referred to in arts. 19 and 21 of Law No. 6.385, of December 7, 1976, in the cases it specifies; I – that deals with CVM Instruction No. 286, of July 31, 1998, which provides for the alienation of shares owned by legal entities of public law and entities controlled directly or indirectly by the Public Power and waives the registrations referred to in arts. 19 and 21 of Law No. 6.385, of December 7, 1976, in the cases it specifies; and

• Item I with wording given by CVM Instruction No. 588, of July 13, 2017.

I – of shares owned by the Union, States, Federal District, and municipalities and other entities of the public administration, which, cumulatively:
a) does not aim placement with the general public; and

b) is carried out in an auction organized by an entity administering an organized market, in accordance with Law No. 8.666, of June 21, 1993; and

• Item I with wording given by CVM Instruction No. 595, of January 30, 2018.

II - of a single and indivisible lot of securities; II - of a single and indivisible lot of securities; and

• Item II with wording given by CVM Instruction No. 482, of April 5, 2010.

II – of a single and indivisible lot of securities.

• Item II with wording given by CVM Instruction No. 595, of January 30, 2018.

III - securities issued by small businesses and micro-enterprises, as defined by law.
III - of securities issued by small businesses and micro-enterprises, as defined by law.

• Item III with wording given by CVM Instruction No. 482, of April 5, 2010.

III – REVOKED

• Item III revoked by CVM Instruction No. 588, of July 13, 2017.

§ 1 The option to waive registration referred to in item II of the caput cannot be reused by the same offeror regarding the same species of securities of the same issuer within a period of 4 (four) months counted from the date of the end of the offering.

• § 1 included by CVM Instruction No. 482, of April 5, 2010.

§ 1 The same offeror cannot make a new offering under item II of the caput regarding the same species of security of the same issuer within a period of 4 (four) months counted from the date of the end of the offering.

• § 1 with wording given by CVM Resolution No. 61, of December 27, 2021.

§ 2 The restriction provided for in § 1 does not apply to offerings of real estate receivable certificates or agribusiness receivable certificates from the same securitizing company backed by segregated credits in different assets through a fiduciary regime.

• § 2 included by CVM Instruction No. 482, of April 5, 2010.

§ 3 The offeror must inform the CVM of the end of the public offering provided for in item II of the caput within a period of 5 (five) days, in the manner indicated in the norm dealing with public offerings with restricted efforts.

• § 3 included by CVM Instruction No. 482, of April 5, 2010.

§ 4 The use of the registration waiver referred to in item III of the caput for offerings of securities of the same issuer is limited to R$ 2,400,000.00 (two million and four hundred thousand reais) in each period of 12 (twelve) months.

• §4 included by CVM Instruction No. 482, of April 5, 2010.

§ 4 REVOKED

• § 4 revoked by CVM Instruction No. 588, of July 13, 2017.

§ 5 The issuer must, prior to the start of the offering, communicate to the CVM its intention to use the registration waiver referred to in item III of the caput in the form of Annex IX.

• § 5 included by CVM Instruction No. 482, of April 5, 2010.

§ 5 REVOKED

• § 5 revoked by CVM Instruction No. 588, of July 13, 2017.

§ 6 The communication referred to in § 5 must be sent via the CVM page on the worldwide web.

• § 6 included by CVM Instruction No. 482, of April 5, 2010.

§ 6 REVOKED

• § 6 revoked by CVM Instruction No. 588, of July 13, 2017.

§ 7 Any material used by the offeror in the offerings referred to in item III of the caput must:
I - contain true, complete, consistent information that does not mislead the investor; and II - be written in simple, clear, objective, calm, and moderate language, warning readers about the risks of investment.

• § 7 included by CVM Instruction No. 482, of April 5, 2010.

§ 7 REVOKED

• § 7 revoked by CVM Instruction No. 588, of July 13, 2017.

§ 8 The material mentioned in § 7 must contain, in highlight:
I - mention that it is advertising material; and II - the following phrase “THIS OFFERING WAS WAIVED OF REGISTRATION BY THE CVM. THE CVM DOES NOT GUARANTEE THE VERACITY OF THE INFORMATION PROVIDED BY THE OFFEROR NOR JUDGES ITS QUALITY OR THAT OF THE SECURITIES OFFERED”.

• § 8 included by CVM Instruction No. 482, of April 5, 2010.

§ 8 REVOKED

• § 8 revoked by CVM Instruction No. 588, of July 13, 2017.

Art. 6 The CVM may also approve the registration of a public secondary distribution offering of shares admitted to trading on a stock exchange, if the open company registration of the issuer of the shares is up to date, through a simplified analysis of the documents and information submitted, provided that, cumulatively, the registration request for distribution:

Art. 6 The CVM may also approve the registration of a public secondary distribution offering of shares admitted to trading in organized markets, if the registration of the issuer of the shares is up to date, through a simplified analysis of the documents and information submitted, provided that, cumulatively, the registration request for distribution:

• Caput with wording given by CVM Instruction No. 482, of April 5, 2010.

I - contains a specific request for the use of the simplified analysis procedure; II - is accompanied by:
a) the documents and information provided for in Annex II, except those contained in items 4, 5, 7, 9 to 11; b) notice, in accordance with Annex VIII; and c) declaration signed by the stock exchange approving the terms of the notice and authorizing the conduct of the offering. c) declaration signed by the entity administering the organized market approving the terms of the notice and authorizing the conduct of the offering.

• Sub-item “c” with wording given by CVM Instruction No. 482, of April 5, 2010.

§1 The use of the procedure provided for in this article is admitted for the primary distribution of shares, when it concerns the placement of leftovers, in a volume greater than 5% of the issuance and less than 1/3 of the shares in circulation in the market, considering the new shares offered for the calculation of shares in circulation, provided that the securities are already admitted to trading on a stock exchange;

§1 The use of the procedure provided for in this article is admitted for the primary distribution of shares, when it concerns the placement of leftovers, in a volume greater than 5% (five percent) of the issuance and less than 1/3 (one third) of the shares in circulation in the market, considering the new shares offered for the calculation of shares in circulation, provided that the securities are already admitted to trading in an organized market.

• § 1 with wording given by CVM Instruction No. 482, of April 5, 2010.

§2 The deadlines for simplified analysis, compliance with requirements, and verification of compliance thereof regarding the registration are those established in art. 13, § 3, items I, II, and III of this Instruction.

ISSUERS WITH HIGH MARKET EXPOSURE
Art. 6-A The registration of a public distribution offering of securities issued by an issuer with high market exposure, as defined in a specific rule, will be granted automatically.

§ 1 The automatic registration request must be presented to the CVM by the offeror, together with the lead institution of the distribution, and must be accompanied by the following documents:
I - specific request for the use of the automatic registration procedure; II - documented declaration that the issuer falls under the definition of issuer with high market exposure; III - the documents provided for in Annex II; IV - Prospectus, preliminary or definitive, prepared in the mold of Annex III; and V - in case of use of Preliminary Prospectus, proof of publication of the notice provided for in art. 53 of this Instruction and draft of the start announcement. V - in case of use of Preliminary Prospectus, proof of dissemination of the notice provided for in art. 53 of this Instruction and draft of the start announcement.

• Item V with wording given by CVM Instruction No. 548, of May 6, 2014.

§ 2 The presentation, in the automatic registration procedure, of a request for waiver of requirements provided for in this Instruction is prohibited.

• Art. 6-A included by CVM Instruction No. 482, of April 5, 2010.

Art. 6-B The registration of a public distribution offering of securities referred to in art. 6-A will take effect after 5 (five) business days from the protocol of the request at the CVM.

§ 1 The registered offering will only begin after:
I - the publication of the Start of Distribution Announcement; and II - the availability of the Definitive Prospectus and its sending to the CVM, in accordance with art. 42, § 3.
I - the dissemination of the Start of Distribution Announcement; and II - the availability of the Definitive Prospectus and its sending to the CVM, in accordance with art. 42.

• Items I and II with wording given by CVM Instruction No. 548, of May 6, 2014.

§ 2 The only information that can be added to the Start of Distribution Announcement and the Definitive Prospectus regarding the documents referred to in § 1 of art. 6-A presented at the time of the distribution registration request is price or remuneration value.

§ 3 The CVM may, at any time:
I - require the adaptation of the information provided to the pertinent legal and regulatory provisions; II - convert the automatic registration procedure into the analysis procedure provided for in arts. 8 and 9; or III - suspend or cancel the distribution offering, in accordance with art. 19.

• Art. 6-B included by CVM Instruction No. 482, of April 5, 2010.

INSTRUCTION OF THE REGISTRATION REQUEST
Art. 7 The request for registration of a public distribution offering of securities shall be requested to the CVM by the founders or by the offeror, as the case may be, together with the lead institution of the distribution, and must be accompanied by the documents and information contained in Annex II, in draft, preliminary, or final form, as the case may be.

DEADLINES FOR ANALYSIS

Art. 8 The CVM will have 20 (twenty) business days, counted from the protocol, to manifest itself regarding the registration request accompanied by all the documents and information that must accompany it, which will be automatically obtained if there is no manifestation by the CVM within this deadline.

Sole Paragraph. The period referred to in the caput of this article will only begin to run with the presentation of all the documents and information provided for in Annex II, except for the hypothesis of § 3 of art. 4, which will begin to count from the protocol.

Art. 9 The period provided for in art. 8 may be interrupted only once if the CVM, by letter sent to the leader of the distribution and with a copy to the offeror or, if applicable, to the founders, requests documents, alterations, and additional information related to the distribution registration request and to the update of information related to the open company registration, this request being formulated in a single and joint act by the responsible areas of the CVM that should manifest themselves on the occasion.

§1 To meet any requirements, a period of up to 40 (forty) business days will be granted, counted from the receipt of the respective correspondence.

§2 The period for compliance with the requirements may be extended only once, for a period not exceeding 20 (twenty) business days, me

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