CVM Instruction 476 (Revoked) - Public Offerings of Securities with Restricted Efforts

FULL TEXT OF CVM INSTRUCTION NO. 476, OF JANUARY 16, 2009, WITH THE CHANGES INTRODUCED BY CVM INSTRUCTIONS NO. 482/10, 488/10, 500/11, 551/14, 554/14, 583/16, 585/17, 600/18, 601/18, 605/19, 625/20 AND CVM RESOLUTIONS NOS. 3/20, 8/20 AND 61/21.

Provides for public offerings of securities distributed with restricted efforts and the trading of these securities in regulated markets.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the board, in a meeting held on December 10, 2008, based on the provisions of arts. 4, items II and VI, 8, item I, 19, §5º, and 21, §6º, of Law No. 6,385, of December 7, 1976, approved the following Instruction:

Application

Art. 1. Public offerings of securities distributed with restricted efforts shall be governed by this Instruction.

§1. This Instruction applies exclusively to public offerings of:
I – commercial paper;
II – bank credit notes that are not the responsibility of a financial institution; III – non-convertible or non-exchangeable debentures; IV – closed-end investment fund shares; and V – real estate or agribusiness receivables certificates.

IV - closed-end investment fund shares;

• Item IV with wording given by CVM Instruction No. 488, of December 16, 2010.
  V - real estate or agribusiness receivables certificates; and

• Item V with wording given by CVM Instruction No. 488, of December 16, 2010.
  V - real estate or agribusiness receivables certificates;

• Item V with wording given by CVM Instruction No. 500, of July 15, 2011.
  V – real estate or agribusiness receivables certificates issued by securitization companies registered with the CVM as open companies;

• Item V with wording given by CVM Instruction No. 605, of January 25, 2019.
  VI - financial notes.

• Item VI included by CVM Instruction No. 488, of December 16, 2010.
  VI - financial notes, provided they are not related to linked active operations;

• Item VI with wording given by CVM Instruction No. 500, of July 15, 2011.
  VI – REVOKED

• Item VI revoked by CVM Resolution No. 8, of October 14, 2020.
  VII - agribusiness credit rights certificates;

• Item VII with wording given by CVM Instruction No. 500, of January 25, 2019.
  VIII - rural product notes - financial notes that are not the responsibility of a financial institution; and VIII – rural product notes - financial notes that are not the responsibility of a financial institution; IX - agricultural warrants. IX – agricultural warrants;

• Items V to IX with wording given by CVM Instruction No. 500, of July 15, 2011.

• Items VIII and IX with wording given by CVM Instruction No. 551, of September 25, 2014.

X – structured operations certificates;
X – REVOKED

• Item X revoked by CVM Resolution No. 8, of October 14, 2020.
  XI – the following securities, provided they are issued by an issuer registered in category A:
  XIV – securities deposit certificates within the scope of a Sponsored BDR Program Level III.
• Items X to XIV included by CVM Instruction No. 551, of September 25, 2014.
  XIV – securities deposit certificates within the scope of a Level I, Level II and Level III Sponsored BDR Program.
• Item XIV with wording given by CVM Instruction No. 585, of April 5, 2017.
  §2. This Instruction does not apply to private offerings of securities.

Art. 2. Public offerings distributed with restricted efforts shall be destined exclusively to professional investors, as defined in specific regulation, and intermediated by members of the securities distribution system.

• Caput with wording given by CVM Instruction No. 554, of December 17, 2014.
  a) shares; b) debentures convertible into shares; and c) subscription warrants, even if assigned as an additional advantage to debenture subscribers; XII – debentures exchangeable into shares, provided such shares are issued by an issuer registered in category A; XIII – securities deposit certificates mentioned in this paragraph; and

Sole paragraph. The search for investors through stores, offices or establishments open to the public, or with the use of public communication services, such as the press, radio, television and pages open to the public on the worldwide computer network, is not permitted.

Art. 3. In public offerings distributed with restricted efforts:
I – the search for a maximum of 75 (seventy-five) professional investors, as defined in specific regulation, is permitted; and

• Item I with wording given by CVM Instruction No. 551, of September 25, 2014.
• Item I with wording given by CVM Instruction No. 554, of December 17, 2014.
  II – the offered securities shall be subscribed or acquired by a maximum of 50 (fifty) professional investors.
• Item II with wording given by CVM Instruction No. 551, of September 25, 2014.
• Item II with wording given by CVM Instruction No. 554, of December 17, 2014.
  Sole paragraph. Investment funds whose investment decisions are made by the same manager shall be considered as a single investor for the purposes of the limits provided for in this article.

§ 1. Investment funds and managed portfolios of securities whose investment decisions are made by the same manager shall be considered as a single investor for the purposes of the limits provided for in this article.

§ 2. Investors who exercise priority or preference rights shall not be considered for the purposes of the limits provided for in this article.

• §§1 and 2 with wording given by CVM Instruction No. 551, of September 25, 2014.

Art. 3-A. In public offerings distributed with restricted efforts, the following exchanges are not admitted:
I – the lead intermediary institution; and
II – the type, series and class of the offered securities.

• Art. 3-A included by CVM Instruction No. 601, of August 23, 2018.

Art. 4. For the purposes of this Instruction, qualified investors are those referred to in art. 109 of CVM Instruction No. 409, of August 18, 2004, observed that:
I – all investment funds shall be considered qualified investors, even if they are destined to non-qualified investors; and II – the natural and legal persons mentioned in item IV of art. 109 of CVM Instruction No. 409, of 2004, shall subscribe or acquire, within the scope of the offering, securities in the minimum amount of R$1,000,000.00 (one million reais).

ARTICLE 4 - REVOKED

• Art. 4 revoked by CVM Instruction No. 554, of December 17, 2014.

Art. 4-A. To carry out a public offering with restricted efforts of BDRs, the sponsoring company must be classified as a foreign issuer or meet the exemption condition provided for in specific regulation. Sole paragraph. The provisions of the caput do not apply to the sponsoring company registered with the CVM as a foreign issuer before December 31, 2009.

• Art. 4-A included by CVM Instruction No. 585, April 5, 2017.

Art. 4-B. Compliance with the provisions of art. 4-A must be declared by the sponsoring company, through a document signed by the legal representative, accompanied by a calculation memo made by the issuer to verify the percentage of assets located in Brazil, in accordance with specific regulation.

• Art. 4-B included by CVM Instruction No. 585, April 5, 2017.

Distribution Procedure

Art. 5. Except in cases expressly provided for in this Instruction, the following do not apply to public offerings distributed with restricted efforts:
I – CVM Instruction No. 400, of December 29, 2003; and II – other CVM rules relating to the distribution procedure of specific securities.

Art. 5-A. The rules regarding partial distribution provided for in the rule that provides for public offerings of distribution of securities in the primary or secondary markets apply to public offerings distributed with restricted efforts.

• Art. 5-A included by CVM Instruction No. 551, of September 25, 2014.

Art. 5-B. In offerings of securities distributed in the manner of this Instruction that provide for the activity of price stabilization of the securities object of the offering, the issuer or the offeror may grant to the intermediary institution an option for the distribution of a supplementary lot, under the same conditions and price as the securities initially offered, up to an amount that cannot exceed 15% (fifteen percent) of the quantity offered.

§ 1. In primary distribution, the priority of former shareholders regarding the part of the shares issued that make up the supplementary lot is excluded.

§ 2. The material fact referred to in art. 9-A, § 1, must include data regarding the granting of the option and the stabilization contract.

• Art. 5-B included by CVM Instruction No. 601, of August 23, 2018.

Art. 5-C. In offerings of securities distributed in the manner of this Instruction, price stabilization operations are admitted, provided that the stabilization contract contains, at least, the clauses provided for in the model defined by the entity administering the organized markets where the securities are admitted to trading.

§ 1. The model referred to in the caput must be previously approved by the CVM and must contain clauses that seek:

I – to guarantee the transparency of the transactions carried out; and II – to mitigate the possibilities of market manipulation.

§ 2. The signed price stabilization contract must be forwarded by the lead intermediary to the Superintendence of Market and Intermediary Relations – SMI prior to the start of the stabilization activity.

• Art. 5-C included by CVM Instruction No. 601, of August 23, 2018.

Art. 6. Public offerings distributed with restricted efforts are automatically exempt from the distribution registration provided for in the caput of art. 19 of Law No. 6,385, of 1976.

Art. 7. In public offerings distributed with restricted efforts, subscribers or acquirers of the securities must provide, in writing, a declaration attesting that they are aware that:
I – the offering was not registered with the CVM; and II – the offered securities are subject to trading restrictions provided for in this Instruction, observed the hypotheses provided for in the sole paragraph of art. 13 and in the paragraphs of art. 15.

• Item II with wording given by CVM Instruction No. 551, of September 25, 2014.

Art. 7-A. The start of the public offering distributed with restricted efforts shall be informed by the lead intermediary to the CVM, within a period of 5 (five) business days, counted from the first search for potential investors.

§1. The communication referred to in the caput shall be forwarded through the CVM page on the worldwide computer network and contain the information indicated in Annex 7-A of this Instruction.

§2. The offeror and the lead intermediary of the offering shall maintain a list containing:
I – the name of the persons solicited;

II – the Individual Taxpayer Registry (CPF) or National Registry of Legal Entities (CNPJ) number; III - the date on which they were solicited; and IV - their decision regarding the offering.

• Art. 7-A included by CVM Instruction No. 551, of September 25, 2014.

Art. 8. The closing of a public offering distributed with restricted efforts shall be informed by the lead intermediary to the CVM, within a period of 5 (five) days, counted from its closing.

§1. The communication referred to in the caput shall be forwarded through the CVM page on the worldwide computer network and contain the information indicated in Annex 8 of this Instruction.

• § 1 with wording given by CVM Instruction No. 551, of September 25, 2014.

§2. If the public offering distributed with restricted efforts is not closed within 6 (six) months of its start, the lead intermediary shall carry out the communication referred to in the caput with the data then available, complementing it semi-annually until closing.

§ 3. The payment of the fee provided for in Annex IV of the law that deals with the supervision fee for the securities markets must be made on the date of closing of the public offering distributed with restricted efforts closed successfully, and the payment reference number must be informed in the communication referred to in the caput.

• § 3 included by CVM Resolution No. 61, of December 27, 2021.

Art. 8-A. The subscription or acquisition of the securities object of the distribution offering must be carried out within a maximum period of 24 (twenty-four) months, counted from the date of start of the offering, as defined in art. 7-A.

• Art. 8-A included by CVM Instruction No. 601, of August 23, 2018.

Art. 9. The offeror may not carry out another public offering of the same type of securities of the same issuer within a period of 4 (four) months counted from the date of closing of the offering, unless the new offering is submitted to registration with the CVM.

Art. 9. The offeror may not carry out another public offering of the same type of securities of the same issuer within a period of 4 (four) months counted from the date of closing or cancellation of the offering, unless the new offering is submitted to registration with the CVM.

• Caput with wording given by CVM Instruction No. 601, of August 23, 2018.

Sole paragraph. The restriction provided for in the caput shall not apply to offerings of real estate receivables certificates or agribusiness receivables certificates of the same securitization company backed by credits segregated in different assets through a fiduciary regime.

Sole paragraph. The restriction provided for in the caput shall not apply:

• Sole paragraph with wording given by CVM Instruction No. 551, of September 25, 2014.

§ 1. The restriction provided for in the caput is not applicable:

• § 1 included by CVM Instruction No. 601, of August 23, 2018.
  I – to offerings of real estate receivables certificates or agribusiness receivables certificates of the same securitization company backed by credits segregated in different assets through a fiduciary regime; II – to offerings of structured operations certificates of the same financial institution referenced in distinct assets or reference indices; and III – to offerings of closed-end investment fund shares, when destined exclusively to fund shareholders, with the cancellation, if any, of the balance of unplaced shares.

§ 2. Except for the offerors of securities object of the offerings provided for in § 1, the offeror has the obligation to inform the lead intermediary about any public offerings of the same type of securities distributed with restricted efforts carried out within the period mentioned in the caput.

• § 2 included by CVM Instruction No. 601, of August 23, 2018.

Art. 9-A. The public offering of primary distribution of shares, subscription warrants, debentures convertible into shares or deposit certificates of these securities distributed with restricted efforts may be carried out with the exclusion of the priority right or with a period for exercising the priority right of less than 5 (five) days, in the manner provided for in art. 172, item I, of Law No. 6,404, of December 15, 1976:
I – provided that priority is granted to shareholders in the subscription of 100% (one hundred percent) of the securities; or I – provided that priority is granted to shareholders in the subscription of 100% (one hundred percent) of the securities, observed art. 5-B, § 1; or

• Item I with wording by CVM Instruction No. 601, of August 23, 2018.
  II – if the carrying out of the offering without the granting of priority right is approved by shareholders representing 100% (one hundred percent) of the issuer's share capital.

§ 1. In the case of item I of the caput, the schedule of the stages of the offering and the manner of exercising the priority right must be the subject of a material fact.

§ 2. The offering must provide for a period of, at least, 5 (five) business days counted after the disclosure of the material fact referred to in § 1 for shareholders to exercise their priority right in the subscription of the securities.

§ 3. If the company's bylaws provide for a period for exercising the priority right of less than 5 (five) days, the period for exercising the priority right must be, at least, that necessary for the periods summed for exercising both rights to be equal to 5 (five) business days counted after the disclosure of the material fact referred to in § 1.

§ 4. The priority of shareholders in the subscription of the capital increase referred to in item I of the caput must be granted in proportion to the number of shares they possess, observing the following rules if the issuer's capital is divided into shares of various species or classes and the increase is made by issuing more than one species or class:
I - in the case of an increase, in the same proportion, of the number of shares of all existing species and classes, each shareholder may exercise the priority right on shares identical to those they possess;

II - if the issued shares are of existing species and classes, but imply a change in their respective proportions in the share capital, the priority must be exercised on shares of species and classes identical to those possessed by the shareholders, only extending to the others if those are insufficient to ensure them, in the increased capital, the same proportion they had in the capital before the increase; and III - if there is an issuance of shares of a species or class different from those existing, each shareholder may exercise the priority, in proportion to the number of shares they possess, on shares of all species and classes of the increase.

§ 5. The priority of shareholders in the subscription of the capital increase referred to in item I of the caput may only be exercised by a shareholder of the issuing company, and its assignment to third parties who are not shareholders is not admitted.

• § 5 included by CVM Instruction No. 601, of August 23, 2018.

§ 6. If the priority is exercised prior to the fixing of the offering price, the investor may stipulate in the reservation request, as a condition for its confirmation, a maximum price for subscription.

• § 6 included by CVM Instruction No. 601, of August 23, 2018.
• Art. 9-A included by CVM Instruction No. 551, of September 25, 2014.

Obligations of Participants

Art. 10. The offeror must provide true, consistent, correct and sufficient information for investors.

Sole paragraph. The administrators of the offeror are also responsible for compliance with the obligation provided for in the caput.

§ 1. The administrators of the offeror are also responsible for compliance with the obligation provided for in the caput.

• Original sole paragraph renumbered to § 1 by CVM Instruction No. 551, of September 25, 2014.

§ 2. Information provided to investors solicited, by an issuer with registration with the CVM, must be disclosed in a comprehensive, equitable and simultaneous manner to the entire market, in accordance with specific regulation.

• § 2 included by CVM Instruction No. 551, of September 25, 2014.

Art. 10-A. The administrators of the offeror, within their legal and statutory competencies, are responsible for compliance with the obligations imposed on the offeror by this Instruction.

• Art. 10-A included by CVM Instruction No. 601, of August 23, 2018.

Art. 10-B. The administrators of the issuer, within their legal and statutory competencies, are responsible for compliance with the obligations imposed on the issuer by this Instruction.

• Art. 10-B included by CVM Instruction No. 601, of August 23, 2018.

Art. 11. It is the duty of the lead intermediary of the offering:
I – to take all precautions and act with high standards of diligence, being liable for lack of diligence or omission, to ensure that the information provided by the offeror is true, consistent, correct and sufficient, allowing investors to make an informed decision regarding the offering; II – to disclose any conflicts of interest to investors; III – to ensure that investors have sufficient knowledge and experience in finance and business to assess the quality and risks of the offered securities; IV – to ensure that the investment is suitable for the level of sophistication and risk profile of the investors; V – to obtain from the subscriber or acquirer of the security the declaration provided for in art. 7 of this Instruction; VI – to suspend the distribution and communicate with the CVM, immediately, if any irregularity is detected; VII – to carry out the communication provided for in art. 8; and

VII – to carry out the communication provided for in art. 8;

• Item VII with wording given by CVM Instruction 585, of April 5, 2017.
  VIII – to keep, for a period of 5 (five) years, all documents relating to the public offering process, including the documents that prove its diligence in accordance with item I.
  VIII - REVOKED
• Item VIII revoked by CVM Instruction No. 551, of September 25, 2014.
  IX – to carry out the communication provided for in art. 7-A.
• Item IX included by CVM Instruction No. 551, of September 25, 2014.
  IX – to carry out the communication provided for in art. 7-A; and
• Item IX with wording given by CVM Instruction No. 585, of April 5, 2017.
  IX – to carry out the communication provided for in art. 7-A of this Instruction;
• Item IX with wording given by CVM Instruction No. 601, of August 23, 2018.
  X – to adopt diligence to verify compliance with the condition for carrying out the offering provided for in art. 4-A of this Instruction.
• Item X included

---

[RegAlert note: the English text above is a translation of the first 24,000 characters of a 46,823-character original (51% of the document). The remainder was not translated. The complete original-language text is stored with this document.]