CVM Instruction 482 (Repealed)

Amends and adds articles to CVM Instruction No. 400, of December 29, 2003, and to CVM Instruction No. 476, of January 16, 2009.

The PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the board, in a meeting held on March 24, 2010, based on the provisions of arts. 4, item VI, 8, item I, 19, § 5, and 21 of Law No. 6.385, of December 7, 1976, APPROVED the following Instruction:

Art. 1 Arts. 3, 4, 5, 6, 11, 12, 13, 14, 27, 32, 40, 43, 46, 48, 55, and 59 of CVM Instruction No. 400, of December 29, 2003, shall enter into force with the following wording:

“Art. 3 ......
......
§ 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 specific exemptions of this requirement, granted in accordance with art. 4.”(NR)

“Art. 4 ......
......
§ 4 ......
I - ......
c) have knowledge that it is a case of exemption from registration or requirements, as applicable;
......

II - all subscribers or acquirers of the offered securities shall 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
......
§ 5 In the cases of exemption from registration or requirements provided for in this article, the CVM may impose restrictions on the trading of securities in regulated markets.”(NR)

“Art. 5 ......
......
II - of a single and indivisible lot of securities; and III - of securities issued by small businesses and micro-enterprises, as defined by law.
§ 1 The option to exempt registration referred to in item II of the caput may not be reused by the same offeror regarding the same type of securities of the same issuer within a period of 4 (four) months counted from the date of closure of the offer. § 2 The restriction provided in § 1 does not apply to offerings of real estate receivable certificates or agribusiness receivable certificates from the same securitization company backed by segregated credits in different assets through a fiduciary regime. § 3 The offeror must inform the CVM of the closure 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 rule dealing with public offerings with restricted efforts. § 4 The use of the registration exemption referred to in item III of the caput for offerings of securities of the same issuer is limited to a maximum volume of R$ 2,400,000.00 (two million and four hundred thousand reais) in each period of 12 (twelve) months.

§ 5 The issuer must, prior to the start of the offer, communicate to the CVM that it intends to use the option of registration exemption referred to in item III of the caput in the form of Annex IX. § 6 The communication referred to in § 5 must be sent through the CVM page on the worldwide computer network. § 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 the investment. § 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 EXEMPTED FROM 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 OFFERED SECURITIES”.(NR)

“Art. 6 The CVM may, furthermore, approve the registration of a public offering for the secondary distribution 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:
......
II - ......
c) declaration signed by the entity administering the organized market approving the terms of the notice and authorizing the conduct of the offering.

§ 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 surplus, 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. ......”(NR)

“Art. 11. ......
§ 1 The Distribution Program shall be presented to the CVM by the issuing company, assisted by one or more Intermediary Institutions, which shall be responsible, in accordance with the provisions of arts. 56 to 56-A, for the information and its verification. § 2 It shall be permitted for new Intermediary Institutions that did not participate in the preparation of the documents presented when filing the Distribution Program to lead offerings backed by this program, becoming responsible for:
I - preparing the Supplement;
II - verifying the consistency and ensuring the sufficiency of the set of information provided within the scope of the Distribution Program; and III - updating, revising, correcting, and complementing the information provided since the filing of the Distribution Program.
......
§ 8 ......
......
II - by decision of the CVM, if an offering linked to it is carried out under conditions different from those contained in the registration, without prejudice to the provisions of art. 59; and ......”(NR)

“Art. 12. ......
......
III - Prospectus prepared in accordance with art. 40, containing a specific section for each type, class, and species of security to be distributed; ......”(NR)

“Art. 13. ......
......
§ 1 The Supplement must:
I - incorporate, by attaching or referring to the page on the worldwide computer network on which they can be consulted:
a) the last reference form; and b) the last quarterly information form - ITR; II - be accompanied:
a) by the definitive versions of the documents presented in draft form in accordance with art. 12, the drafts and definitive versions being substantially identical; b) by a copy of the distribution contract signed; c) by the other documents required in Annex II, provided they have not been presented in the form of art. 12, item V; and d) by the specific documents for the type, class, and species of security to be distributed. ...... ”(NR)

“Art. 14. ......
......
§ 4 The CVM shall not approve the registration of a public offering for the distribution of securities in the period starting on the sixteenth day preceding any disclosure of periodic information of the issuer and ending on the date of its effective disclosure. § 5 The provisions of § 4 do not apply to investment funds.”(NR)

“Art. 27. The modification must be disclosed immediately through means at least equal to those used for the disclosure of the offering, and the entities belonging to the distribution consortium must safeguard and certify, at the time of receiving the acceptances of the offering, that the declarant is aware that the original offering was altered and has knowledge of the new conditions. ......”(NR)

“Art. 32. The request for registration of a public offering for the distribution of securities must be accompanied by an economic-financial feasibility study of the issuer when:
I - the offering aims to constitute the issuer; II - the issuer is in the pre-operational phase; or III - the resources raised in the offering are predominantly intended for investments in activities not yet developed by the issuer.”(NR)

“Art. 40. ......
§ 1 In public offerings for the distribution of securities resulting from securitization operations, in addition to the information and documents indicated in Annex III, the Prospectus shall contain the information and documents indicated in Annex III-A. § 2 The inclusion of item 1-A of Annex III – “issuer summary” – in the Prospectuses is optional.

§ 3 If the offeror decides to include item 1-A in the Prospectus, the issuer summary:
I - must not exceed 15 (fifteen) pages;
II - must be consistent with the reference form; III - must mention, on the first page and in highlight, the following phrase: “[T]HIS SUMMARY IS ONLY A SUMMARY OF THE ISSUER'S INFORMATION. THE COMPLETE INFORMATION ABOUT THE ISSUER IS IN THE REFERENCE FORM, READ IT BEFORE ACCEPTING THE OFFER.”; and IV - must highlight the 5 (five) main risk factors related to the issuer. § 4 The information requested in item 7 of Annex III, if any, is optional if the third-party guarantor or recipient of the resources is an issuer registered with the CVM.”(NR)

“Art. 43. It is permitted for the offeror and the leading institution of the distribution to consult potential investors to determine the feasibility or interest in a potential public offering for distribution, provided that this consultation does not exceed 50 (fifty) investors and has reasonable criteria for controlling confidentiality and secrecy, if the offeror has previously hired an intermediary institution. ......”(NR)

“Art. 46. ......
......
§ 4 The provisions of art. 40 of this Instruction apply to the Preliminary Prospectus.”(NR)

“Art. 48. The issuer, the offeror, the Intermediary Institutions, the latter from the time of hiring, involved in a public offering for distribution, decided or planned, and the persons working with or advising them in any manner, shall, without prejudice to the disclosure by the issuer of periodic information and any required by the CVM:

......
II - refrain from trading, until the publication of the Announcement of Closure of Distribution, with securities issued by the offeror or the issuer, or referenced therein, except in the cases of:
......
c) trading on behalf and order of third parties;
......
e) operations intended to protect positions assumed in total return swaps contracted with third parties; f) operations carried out as market makers, in accordance with the CVM regulations in force; or g) discretionary administration of third-party portfolios.
......
IV - refrain from making statements in the media about the offering or the offeror until the publication of the Announcement of Closure of Distribution in the 60 (sixty) days preceding the filing of the registration request for the offering or since the date the offering was decided or planned, whichever occurs last; and
......
§ 1 The prohibition provided for in item IV does not apply to information habitually disclosed in the normal course of the issuer's activities.
§ 2 The conduct rules established in items II and III apply to Intermediary Institutions, their controlled companies, holding companies, companies under the same control, that operate in the financial market.

§ 3 The persons referred to in § 2 must adopt adequate procedures to ensure compliance with the conduct rules provided for in items II and III.”(NR)

“Art. 55. In the case of distribution with excess demand exceeding by one third the quantity of securities offered, the placement of securities in controllers or administrators of the Intermediary Institutions and the issuer or other persons linked to the issuance and distribution, as well as their spouses or partners, their ascendants, descendants, and collateral relatives up to the 2nd degree, is prohibited. Sole paragraph. The prohibition of the caput does not apply to financial institutions hired as market makers, provided that the right to subscribe and the maximum quantity of securities to be subscribed, if there is such a limitation, are disclosed in the Prospectus.”(NR)

“Art. 59. ......
......
V - with the provision of false or biased information in the Prospectus or in the context of the offerings governed by this Instruction; VI - if specific versions highlighting the alterations made in the definitive versions compared to the drafts or other documentation presented are not highlighted; VII - if the conduct rules established in arts. 48, I, II, and V, and 49 are not observed; and VIII - in which the company, the leading institution, or the other Intermediary Institutions involved disseminate a Prospectus or advertising material without prior approval by the CVM or in violation of the provisions of this Instruction.”(NR)

Art. 2 Items 4, 5, 6, and 7 of Annex III of CVM Instruction No. 400, of 2003, shall enter into force with the following wording:

“4. OFFERING RISK FACTORS
4.1 Expose, in order of relevance, the risk factors related to the offering and to the security that may, in any way, support an investment decision of a potential investor, considering in the risk analysis horizon the term of the investment and the distributed security and the financial culture of the investors targeted by the offering.”(NR)

“5. REFERENCE FORM
5.1 Attach the last reference form delivered by the issuing company or incorporate it by reference indicating the page on the worldwide computer network on which it can be consulted.”(NR)

“6. FINANCIAL STATEMENTS OF THE LAST FISCAL YEAR, QUARTERLY INFORMATION, AND SUBSEQUENT EVENTS
6.1 Attach the Financial Statements, with the respective opinions of independent auditors and management reports, relating to the last three closed fiscal years or incorporate them by reference indicating the page on the worldwide computer network on which they can be consulted; and
6.2 Attach the latest Quarterly Information or incorporate them by reference indicating the page on the worldwide computer network on which they can be consulted.”(NR)

“7. INFORMATION RELATING TO THE THIRD-PARTY GUARANTOR OR RECIPIENT OF THE RESOURCES
7.1 Identify the corporate name, headquarters, and corporate purpose; and
7.2 Present the information described in items 3.7, 6.1 to 6.3, 7.1, 8, 12.1, 12.6, 13.2, 15.1, 16.2, 17.1, 18.5, and 22.3 of the reference form.”(NR)

Art. 3 Item 6 of Annex III-A of CVM Instruction No. 400, of 2003, shall enter into force with the following wording:

“6. ......
6.1 Financial statements of debtors or co-obligors, required in accordance with item 5.3, with the statements of open companies being incorporable by reference.

6.2 Financial statements of originators, required in accordance with item 4.2, with the statements of open companies being incorporable by reference.
6.3 Copy of the Real Estate Credit Securitization Term, when it concerns public offerings for the distribution of Real Estate Receivable Certificates – CRI.
6.4 Copy of the Agribusiness Credit Securitization Term, when it concerns public offerings for the distribution of Agribusiness Receivable Certificates – CRA.”(NR)

Art. 4 The title of Annex III-B shall enter into force with the following wording:

“ADDITIONAL PROSPECTUS INFORMATION RELATING TO OFFERINGS OF SHARES OF REAL ESTATE INVESTMENT FUNDS”(NR)

Art. 5 Item IV of Annex IV of CVM Instruction No. 400, of 2003, shall enter into force with the following wording:

“IV - ......
......
f) description of the target investor public of the offering; and g) placement regime of the securities.”(NR)

Art. 6 Item VIII of Annex V of CVM Instruction No. 400, of 2003, shall enter into force with the following wording:

“VIII - Final placement data, contained in the last Monthly Placement Summary (Annex VII).”(NR)

Art. 7 Item 1 of Annex VI of CVM Instruction No. 400, of 2003, shall enter into force with the following wording:

“1. Qualification of the issuing company, the leading institution, and the other Intermediary Institutions involved in the distribution, if applicable;”(NR)

Art. 8 Item 5 of Annex VIII of CVM Instruction No. 400, of 2003, shall enter into force with the following wording:

“5. OTHER DOCUMENTS AND INFORMATION THAT THE CVM DEEMS NECESSARY
5.1 Declaration from the Stock Exchange approving the notice.”(NR)

Art. 9 CVM Instruction No. 400, of 2003, shall enter into force amended by the addition of arts. 6º-A, 6º-B, 56-A, 56-B, and 56-C:

“ISSUERS WITH HIGH MARKET EXPOSURE
Art. 6º-A The registration of a public offering for the distribution of securities issued by an issuer with high market exposure, as defined in a specific rule, shall be granted automatically. § 1 The automatic registration request must be presented to the CVM by the offeror, together with the leading institution of the distribution, and must be accompanied by the following documents:
I - specific request for the use of the automatic registration procedure; II - justified declaration that the issuer fits the definition of issuer with high market exposure; III - the documents provided for in Annex II; IV - Prospectus, preliminary or definitive, prepared in accordance with 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. § 2 It is prohibited to present, in the automatic registration procedure, a request for exemption from requirements provided for in this Instruction.”(NR)

“Art. 6º-B The registration of a public offering for the distribution of securities referred to in art. 6º-A shall take effect five (5) business days after the filing of the request with the CVM.

§ 1 The offering registered in accordance with the caput shall only begin after:
I - the publication of the Announcement of Start of Distribution; and II - the availability of the Definitive Prospectus and its sending to the CVM, in accordance with art. 42, § 3.
§ 2 The only information that may be added to the Announcement of Start of Distribution and to the Definitive Prospectus in relation to the documents referred to in § 1 of art. 6º-A presented at the time of the distribution registration request is the 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.”(NR)

“ADMINISTRATOR RESPONSIBILITY
Art. 56-A. The administrators of the leading institution of the offering, within their legal and statutory competencies, have the duty to ensure compliance with the obligations imposed on the leader by this Instruction.”(NR)

“Art. 56-B. 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.”(NR)

“Art. 56-C. 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.”(NR)

Art. 10 Annex III of CVM Instruction No. 400, of 2003, shall enter into force amended by the addition of item 1-A:

“1-A. ISSUER SUMMARY (optional item)
1-A.1 Brief description of the issuer with the information that the offeror wishes to highlight in relation to those contained in the reference form, within the parameters established in art. 40.”(NR)

Art. 11 CVM Instruction No. 400, of 2003, shall enter into force amended by the addition of Annex IX, as attached to this Instruction.

Art. 12 Art. 15 of CVM Instruction No. 476, of January 16, 2006, shall enter into force with the following wording:

“Art. 15. ......
§ 1 The trading restriction provided for in the caput shall cease to be applicable if the issuer has or obtains the registration referred to in art. 21 of Law No. 6.385, of 1976.
§ 2 In the case of closed investment funds, the trading restriction provided for in the caput shall cease to be applicable if the fund presents a Prospectus, in accordance with the applicable regulations.”(NR)

Art. 13. The §§ 1 and 2 of art. 2, item I of § 1, and item III of § 4 of art. 4; § 4 and item “b” of item III of § 8 of art. 11, § 1 of art. 39, § 4 of art. 43, and the note at the end of Annex III, of CVM Instruction No. 400, of December 29, 2003, are repealed.

Art. 14. This Instruction enters into force on August 1, 2010.

Signed original by
MARIA HELENA DOS SANTOS FERNANDES DE SANTANA
President

Annex IX added to CVM Instruction No. 400, of 2003
ANNEX IX
INFORMATION ON PUBLIC OFFERING OF SECURITIES
ISSUED BY MICRO AND SMALL BUSINESSES
ISSUER
Name:
CNPJ:
Corporate type:
Headquarters address:
Name of legal representative:
Contact phone:
Fax:
E-mail:
Website:
Revenue in the last fiscal year:
OFFERING DATA
Quantity of securities subject to the offering:
Description of the offered security:
Unit price:
Total value of the offering:
Offer start date:
Intermediary institution (if any):