Rule · CVM · 3 Jan 2002
CVM Instruction No. 358 regulates the disclosure and use of information regarding material acts or facts by open capital companies, controlling shareholders, and directors. It establishes obligations for the Investor Relations Director to promptly disclose material information to the CVM, stock exchanges, and the organized over-the-counter market, while prohibiting trading during the pendency of undisclosed material facts. The instruction revokes previous regulations including CVM Instruction No. 31 and No. 69, and defines specific criteria for what constitutes a material fact, such as changes in control, mergers, or significant financial results.
Headquarters: Rua Sete de Setembro, 111/2-5th and 23-34th Floors – Center – Rio de Janeiro - RJ – ZIP: 20050-901 – Brazil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional Office of São Paulo: Rua Cincinato Braga, 340/2nd, 3rd and 4th Floors – Bela Vista – São Paulo – SP – ZIP: 01333-010 – Brazil – Tel.: (11) 2146-2000 Regional Office of Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4th Floor – Brasília – DF – ZIP: 70712-900 – Brazil – Tel.: (61) 3327-2030/2031 FULL TEXT OF CVM INSTRUCTION No. 358, OF JANUARY 3, 2002, WITH THE CHANGES INTRODUCED BY CVM INSTRUCTIONS No. 369/02, 449/07, 547/14, 552/14, 568/15, 590/17, 604/18 AND 620/20. CVM INSTRUCTION No. 358, OF JANUARY 3, 2002. Provides for the disclosure and use of information regarding material acts or facts related to open capital companies, disciplines the disclosure of information in the trading of securities and in the acquisition of a significant block of shares issued by an open capital company, establishes prohibitions and conditions for the trading of shares of open capital companies pending the non-disclosure of material facts to the market, revokes CVM Instruction No. 31, of February 8, 1984, CVM Instruction No. 69, of September 8, 1987, art. 3 of CVM Instruction No. 229, of January 16, 1995, the sole paragraph of art. 13 of CVM Instruction 202, of December 6, 1993, and arts. 3 to 11 of CVM Instruction No. 299, of February 9, 1999, and gives other provisions.
THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Body, in a meeting held on this date, and based on the provisions of arts. 4 and its items, 8, items I and III, 18, item II, letter "a", and 22, § 1, items I, V and VI, of Law No. 6.385, of December 7, 1976, and in art. 157 of Law No. 6.404, of December 15, 1976, resolved to issue the following Instruction:
SCOPE AND PURPOSE
Art. 1 The disclosure and use of information regarding material acts or facts, the disclosure of information in the trading of securities issued by open capital companies by controlling shareholders, directors, members of the board of directors, the fiscal council, and any bodies with technical or advisory functions, created by statutory provision, and, furthermore, in the acquisition of a significant block of shares issued by an open capital company, and the trading of shares of open capital companies pending the non-disclosure of material facts to the market, are regulated by the provisions of this Instruction.
DEFINITION OF MATERIAL ACT OR FACT
Art. 2 For the purposes of this Instruction, any decision by a controlling shareholder, deliberation by the general assembly or the administrative bodies of the open capital company, or any other act or fact of a political-administrative, technical, business or economic-financial nature, occurred or related to its business, that may influence in a considerable manner:
I - the quotation of the securities issued by the open capital company or referenced to them; II - the decision of investors to buy, sell or hold those securities; III - the decision of investors to exercise any rights inherent to the status of holder of securities issued by the company or referenced to them, is considered material. Sole paragraph. Observing the definition in the caput, examples of potentially material acts or facts, among others, include the following:
I - signing of an agreement or contract for the transfer of shareholding control of the company, even if under suspensive or resolutive conditions; II - change in the control of the company, including through the celebration, amendment or rescission of a shareholders' agreement; III - celebration, amendment or rescission of a shareholders' agreement in which the company is a party or intervenor, or which has been recorded in the company's own register; IV - entry or exit of a partner who maintains, with the company, an operational, financial, technological or administrative contract or collaboration; V - authorization for the trading of the securities issued by the company in any market, national or foreign; VI - decision to promote the cancellation of the registration of the open capital company; VII - merger, consolidation or spin-off involving the company or affiliated companies; VIII - transformation or dissolution of the company; IX - change in the company's asset composition; X - change in accounting criteria; XI - renegotiation of debts; XII - approval of a plan for granting stock options; XIII - alteration in the rights and advantages of the securities issued by the company; XIV - split or consolidation of shares or attribution of bonus; XV - acquisition of the company's shares for treasury holding or cancellation, and alienation of shares so acquired; XV – acquisition of securities issued by the company for treasury holding or cancellation, and alienation of securities so acquired;
DUTIES AND RESPONSIBILITIES IN THE DISCLOSURE OF MATERIAL ACT OR FACT Art. 3 It is incumbent upon the Investor Relations Director to disclose and communicate to the CVM and, if applicable, to the stock exchange and organized over-the-counter market entity where the securities issued by the company are admitted to trading, any material act or fact occurred or related to its business, as well as to ensure its broad and immediate dissemination, simultaneously in all markets where such securities are admitted to trading. Art. 3 It is incumbent upon the Investor Relations Director to send to the CVM, through an electronic system available on the CVM's website on the World Wide Web, and, if applicable, to the stock exchange and organized over-the-counter market entity where the securities issued by the company are admitted to trading, any material act or fact occurred or related to its business, as well as to ensure its broad and immediate dissemination, simultaneously in all markets where such securities are admitted to trading.
EXCEPTION TO IMMEDIATE DISCLOSURE
Art. 6 Subject to the provision of the sole paragraph, material acts or facts may, exceptionally, fail to be disclosed if controlling shareholders or administrators believe that their revelation will put at risk the legitimate interest of the company.
Sole paragraph. The persons mentioned in the caput are obliged to, directly or through the Investor Relations Director, immediately disclose the material act or fact, in the event that the information escapes control or if there is atypical oscillation in the quotation, price or quantity traded of the securities issued by the open capital company or referenced to them. Art. 7 The CVM, at the request of administrators, any shareholder or on its own initiative, may decide on the provision of information that has failed to be disclosed, in the manner of the caput of art. 6. §1 The request referred to in the caput must be addressed to the President of the CVM in a sealed envelope, in which the word "Confidential" must appear. §1 The request referred to in the caput must be addressed to the Superintendence of Corporate Relations – SEP by:
I – electronic correspondence addressed to the institutional address of SEP with the subject “request for confidentiality”; or II – sealed envelope, in which the word "confidential" must appear, prominently.
DUTY TO KEEP CONFIDENCE
Art. 8 It is incumbent upon controlling shareholders, directors, members of the board of directors, the fiscal council, and any bodies with technical or advisory functions, created by statutory provision, and employees of the company, to keep confidential the information regarding material acts or facts to which they have privileged access by reason of the position they hold, until its disclosure to the market, as well as to ensure that subordinates and third parties of their confidence also do so, responding jointly with them in the event of non-compliance.
DISCLOSURE OF INFORMATION IN PUBLIC OFFERS
Art. 9 Immediately after deliberating to carry out a public offer that depends on registration with the CVM, the offeror must disclose the quantity of securities to be acquired or alienated, the price, the payment conditions and other conditions to which the offer is subject, in accordance with art. 3 of this Instruction. §1 The provision in the caput does not apply to the preliminary confidential analysis procedure for requests for registration of public distribution of securities, in accordance with current regulation. §2 If the realization of the public offer is subject to the fulfillment of conditions, the offeror is obliged to disclose a notice of material fact, whenever such conditions are verified, clarifying whether it maintains the offer, and under what conditions, or if it will lose its effectiveness. §3 The primary or secondary public distribution of securities should only be disclosed, in conformity with the provision in the caput, when it falls under one of the hypotheses provided for in items I to III of art. 2.
DISCLOSURE OF INFORMATION IN THE ALIENATION OF CONTROL Art. 10. The acquirer of the shareholding control of an open capital company must disclose a material fact and carry out the communications referred to in art. 3, in the manner provided therein.
Sole paragraph. The communication and disclosure referred to in the caput must include, at minimum, the following information:
INSTRUÇÃO CVM No 358, DE 3 DE JANEIRO DE 2002 9 Sede: Rua Sete de Setembro, 111/2-5º e 23-34º Andares – Centro – Rio de Janeiro - RJ – CEP: 20050-901 – Brasil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional de São Paulo: Rua Cincinato Braga, 340/2º,3º e 4º Andares – Bela Vista – São Paulo – SP – CEP: 01333-010 – Brasil – Tel.: (11) 2146-2000 Regional de Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4º Andar – Brasília – DF – CEP:70712-900 – Brasil – Tel.: (61) 3327-2030/2031 I - name and qualification of the acquirer, as well as a brief summary of the sectors in which it operates and activities developed by it; II - name and qualification of the seller, including indirect sellers, if any; III - price, total and attributed per share of each species and class, payment method and other relevant characteristics and conditions of the transaction; IV - objective of the acquisition, indicating, in the case where the acquirer is a public company, the expected effects on its business; V - number and percentage of shares acquired, by species and class, in relation to voting and total capital; VI - indication of any agreement or contract regulating the exercise of voting rights or the purchase and sale of securities issued by the company; VII - declaration regarding the intention to promote, or not, within one year, the cancellation of the public company's registration; and VIII - other relevant information regarding future plans in the conduct of the company's business, notably with regard to specific corporate events that the acquirer intends to promote in the company, especially corporate restructuring involving merger, spin-off, or incorporation.
DISCLOSURE OF INFORMATION ON TRANSACTIONS BY DIRECTORS AND RELATED PARTIES Art. 11. Directors, members of the board of directors, the fiscal council, and any bodies with technical or advisory functions, created by statutory provision, are obliged to communicate to the CVM, the company, and, if applicable, to the stock exchange and organized over-the-counter market entity in which the securities issued by the company are admitted to trading, the quantity, characteristics, and method of acquisition of the securities issued by the company and by controlled or controlling companies, if they are public companies, or referenced to them, which they hold, as well as changes in their positions. §1o The communication must contain, at a minimum, the following information:
I - name and qualification of the communicator, indicating the registration number in the National Registry of Legal Entities or the Individual Taxpayer Registry; II - quantity, by species and class, in the case of shares, and other characteristics in the case of other securities, in addition to the identification of the issuing company; and
INSTRUÇÃO CVM No 358, DE 3 DE JANEIRO DE 2002 10 Sede: Rua Sete de Setembro, 111/2-5º e 23-34º Andares – Centro – Rio de Janeiro - RJ – CEP: 20050-901 – Brasil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional de São Paulo: Rua Cincinato Braga, 340/2º,3º e 4º Andares – Bela Vista – São Paulo – SP – CEP: 01333-010 – Brasil – Tel.: (11) 2146-2000 Regional de Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4º Andar – Brasília – DF – CEP:70712-900 – Brasil – Tel.: (61) 3327-2030/2031 III - method, price, and date of the transactions. §2o Directors, members of the board of directors, members of the fiscal council, and members of any bodies with technical or advisory functions, created by statutory provision, must carry out the communication referred to in the caput immediately after assuming office or upon submission of documentation for the registration of the company as a public company, and within a maximum period of 10 (ten) days after the end of the month in which changes in their held positions are verified, indicating the position balance in the period. §3o The natural persons mentioned in this article must also indicate the securities that are the property of a spouse from whom they are not judicially separated, a partner, any dependent included in their annual income tax return, and companies directly or indirectly controlled by them. Art. 11. Directors, members of the board of directors, the fiscal council, and any bodies with technical or advisory functions created by statutory provision are obliged to inform the company of the ownership and transactions carried out with securities issued by the company itself, by its controlling or controlled companies, in the latter two cases, provided that they are public companies. § 1º The communication referred to in the caput of this article must cover transactions with derivatives or any other securities referenced in the securities issued by the company or by its controlling or controlled companies, in the latter two cases, provided that they are public companies. § 2º The natural persons mentioned in this article must also indicate the securities that are the property of a spouse from whom they are not judicially separated, a partner, any dependent included in their annual income tax return, and companies directly or indirectly controlled by them. § 2º The natural persons mentioned in this article must also indicate the securities that are the property of a spouse from whom they are not judicially or extrajudicially separated, a partner, any dependent included in their annual income tax adjustment declaration, and companies directly or indirectly controlled by them.
INSTRUÇÃO CVM No 358, DE 3 DE JANEIRO DE 2002 11 Sede: Rua Sete de Setembro, 111/2-5º e 23-34º Andares – Centro – Rio de Janeiro - RJ – CEP: 20050-901 – Brasil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional de São Paulo: Rua Cincinato Braga, 340/2º,3º e 4º Andares – Bela Vista – São Paulo – SP – CEP: 01333-010 – Brasil – Tel.: (11) 2146-2000 Regional de Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4º Andar – Brasília – DF – CEP:70712-900 – Brasil – Tel.: (61) 3327-2030/2031 I – name and qualification of the communicator, indicating the registration number in the National Registry of Legal Entities or the Individual Taxpayer Registry; I – name and qualification of the communicator, and, if applicable, of the persons mentioned in § 2º, indicating the registration number in the National Registry of Legal Entities or the Individual Taxpayer Registry;
INSTRUÇÃO CVM No 358, DE 3 DE JANEIRO DE 2002 12 Sede: Rua Sete de Setembro, 111/2-5º e 23-34º Andares – Centro – Rio de Janeiro - RJ – CEP: 20050-901 – Brasil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional de São Paulo: Rua Cincinato Braga, 340/2º,3º e 4º Andares – Bela Vista – São Paulo – SP – CEP: 01333-010 – Brasil – Tel.: (11) 2146-2000 Regional de Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4º Andar – Brasília – DF – CEP:70712-900 – Brasil – Tel.: (61) 3327-2030/2031 § 5º The company must send to the CVM and, if applicable, to the stock exchanges or over-the-counter market entities in which the company's shares are admitted to trading, the information referred to in the caput and in §§ 1º to 3º regarding the securities traded:
I – by the company itself, its controlled and affiliated companies; and II – by the other persons referred to in this article.
DISCLOSURE OF INFORMATION ON THE ACQUISITION AND ALIENATION OF RELEVANT SHAREHOLDING PARTICIPATION, AND ON TRANSACTIONS BY CONTROLLERS AND SHAREHOLDERS Art. 12. Controlling shareholders, direct or indirect, and shareholders who elect members of the Board of Directors, as well as any natural or legal person, or group of persons, acting jointly or representing the same interest, who reach a direct or indirect participation corresponding to 5% (five percent) or more of the species or class of shares representing the capital of a public company, must send to the CVM and, if applicable, to the stock exchange and organized over-the-counter market entity in which the securities issued by the company are admitted to trading, as well as disclose, in accordance with art. 3o, a declaration containing the following information:
Art. 12. Controlling shareholders, direct or indirect, and shareholders who elect members of the Board of Directors or the fiscal council, as well as any natural or legal person, or group of persons, acting jointly or representing the same interest, who reach a direct or indirect participation corresponding to 5% (five percent) or more of the species or class of shares representing the capital of a public company, must send the following information to the company:
INSTRUÇÃO CVM No 358, DE 3 DE JANEIRO DE 2002 14 Sede: Rua Sete de Setembro, 111/2-5º e 23-34º Andares – Centro – Rio de Janeiro - RJ – CEP: 20050-901 – Brasil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional de São Paulo: Rua Cincinato Braga, 340/2º,3º e 4º Andares – Bela Vista – São Paulo – SP – CEP: 01333-010 – Brasil – Tel.: (11) 2146-2000 Regional de Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4º Andar – Brasília – DF – CEP:70712-900 – Brasil – Tel.: (61) 3327-2030/2031 I - name and qualification of the acquirer, indicating the registration number in the National Registry of Legal Entities or the Individual Taxpayer Registry; II - objective of the participation and quantity sought; II – objective of the participation and quantity sought, containing, if applicable, a declaration by the acquirer that its purchases do not aim to alter the composition of control or the administrative structure of the society;
INSTRUÇÃO CVM No 358, DE 3 DE JANEIRO DE 2002 15 Sede: Rua Sete de Setembro, 111/2-5º e 23-34º Andares – Centro – Rio de Janeiro - RJ – CEP: 20050-901 – Brasil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional de São Paulo: Rua Cincinato Braga, 340/2º,3º e 4º Andares – Bela Vista – São Paulo – SP – CEP: 01333-010 – Brasil – Tel.: (11) 2146-2000 Regional de Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4º Andar – Brasília – DF – CEP:70712-900 – Brasil – Tel.: (61) 3327-2030/2031 IV – number of debentures convertible into shares, already held, directly or indirectly, by the acquirer or a person related to them, specifying the quantity of shares subject to possible conversion, by species and class;
INSTRUÇÃO CVM No 358, DE 3 DE JANEIRO DE 2002 16 Sede: Rua Sete de Setembro, 111/2-5º e 23-34º Andares – Centro – Rio de Janeiro - RJ – CEP: 20050-901 – Brasil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional de São Paulo: Rua Cincinato Braga, 340/2º,3º e 4º Andares – Bela Vista – São Paulo – SP – CEP: 01333-010 – Brasil – Tel.: (11) 2146-2000 Regional de Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4º Andar – Brasília – DF – CEP:70712-900 – Brasil – Tel.: (61) 3327-2030/2031 §4o The persons mentioned in the caput must also inform of the alienation or extinction of shares and other securities mentioned in this article, or of rights thereon, each time such alienation or extinction reaches the percentage referred to in the caput. § 4º The persons mentioned in the caput of this article must also inform of the alienation or extinction of shares and other securities mentioned in this article, or of rights thereon, each time the holder's participation in the species or class of the securities in question reaches the percentage of 5% (five percent) of the total of this species or class and each time such participation is reduced by 5% (five percent) of the total of the species or class.
CVM INSTRUCTION NO. 358, OF JANUARY 3, 2002
Headquarters: Rua Sete de Setembro, 111/2-5º and 23-34º Floors – Center – Rio de Janeiro - RJ – ZIP: 20050-901 – Brazil – Tel.: (21) 3554-8686 – http://www.cvm.gov.br.
Regional Office of São Paulo: Rua Cincinato Braga, 340/2nd, 3rd and 4th Floors – Bela Vista – São Paulo – SP – ZIP: 01333-010 – Brazil – Tel.: (11) 2146-2000 Regional Office of Brasília: SCN Q.02 – Bl. A – Ed. Corporate Financial Center – S.404/4th Floor – Brasília – DF – ZIP: 70712-900 – Brazil – Tel.: (61) 3327-2030/2031
§ 1 A relevant transaction is considered to be a transaction or set of transactions through which the direct or indirect participation of the persons referred to in the caput exceeds, upwards or downwards, the thresholds of 5% (five percent), 10% (ten percent), 15% (fifteen percent), and so on successively, of shares or class of shares representing the social capital of a publicly-held company.
§ 2 Except as provided in § 3, the obligations provided for in the caput and in § 1 also extend to:
I – the acquisition of any rights over the shares and other securities mentioned therein; and II – the execution of any financial derivative instruments referenced in the shares referred to in the caput, even if without provision for physical settlement.
§ 3 In the cases provided for in § 2, the following rules must be observed:
I – the shares directly held and those referenced by financial derivative instruments with physical settlement will be considered together for the purpose of verifying the percentages referred to in § 1 of this article; II – the shares referenced by financial derivative instruments with exclusively financial settlement will be computed independently of the shares referred to in item I for the purpose of verifying the percentages referred to in § 1 of this article; III – the quantity of shares referenced in derivative instruments that confer economic exposure to the shares cannot be offset by the quantity of shares referenced in derivative instruments that produce inverse economic effects; and IV – the obligations provided for in the caput of this article do not extend to structured operation certificates – COE, securities index funds and other financial derivative instruments in which less than 20% (twenty percent) of their return is determined by the return of the issuing company's shares.
§ 4 The communication referred to in the caput will be made immediately after the participation referred to in § 1 is reached.
§ 5 In cases where the acquisition results from or has been carried out with the objective of altering the composition of control or the administrative structure of the company, as well as in cases where the acquisition generates the obligation to make a public offer, in accordance with the applicable regulations, the acquirer must also promote the disclosure, at minimum, through the same communication channels usually adopted by the company, in accordance with art. 3, § 4, of a notice containing the information provided for in items I to VI of the caput of this article.
§ 6 The Director of Investor Relations is responsible for transmitting the information, as soon as received by the company, to the CVM and, if applicable, to the administrative entities of the markets in which the company's shares are admitted to trading.
PROHIBITIONS ON TRADING
Art. 13. Before the disclosure to the market of a relevant act or fact occurred in the company's business, trading with securities issued by it, or referenced in them, is prohibited by the publicly-held company itself, controlling shareholders, direct or indirect, directors, members of the board of directors, the supervisory board and any bodies with technical or advisory functions, created by statutory provision, or by anyone who, by virtue of their position, function or role in the publicly-held company, its parent, its subsidiaries or affiliates, has knowledge of the information relating to the relevant act or fact.
§1 The same prohibition applies to anyone who has knowledge of information relating to a relevant act or fact, knowing that it is information not yet disclosed to the market, especially those who have a commercial, professional or trust relationship with the company, such as independent auditors, securities analysts, consultants and institutions part of the distribution system, who are responsible for verifying the disclosure of the information before trading with securities issued by the company or referenced in them.
§2 Without prejudice to the provisions of the preceding paragraph, the prohibition in the caput also applies to administrators who leave the company's administration before the public disclosure of a business or fact initiated during their management period, and will extend for a period of six months after their departure.
§3 The prohibition in the caput will also prevail whenever the acquisition or alienation of shares issued by the company is underway by the company itself, its subsidiaries, affiliates or another society under common control, or if an option or mandate has been granted for the same purpose, as well as if there is an intention to promote a merger, total or partial spin-off, consolidation, transformation or corporate reorganization.
§3 The prohibition in the caput will also prevail:
I – if there is an intention to promote a merger, total or partial spin-off, consolidation, transformation or corporate reorganization; and II – with respect to controlling shareholders, direct or indirect, directors and members of the board of directors, whenever the acquisition or alienation of shares issued by the company is underway by the company itself, its subsidiaries, affiliates or another society under common control, or if an option or mandate has been granted for the same purpose.
§4 Trading is also prohibited by the persons mentioned in the caput during the 15 (fifteen) days prior to the disclosure of the company's quarterly (ITR) and annual (DFP and IAN) information.
§ 4 Trading is also prohibited by the persons mentioned in the caput during the 15 (fifteen) days preceding the disclosure of the company's quarterly (ITR) and annual (DFP) information, except as provided in § 3 of art. 15.
§ 4 Trading is also prohibited by the persons mentioned in the caput during the 15 (fifteen) days preceding the disclosure of the company's quarterly (ITR) and annual (DFP) information, except as provided in § 2 of art. 15-A.
§5 The prohibitions provided for in the caput and in §§ 1 to 3 will cease to have effect as soon as the company discloses the relevant fact to the market, unless trading with the shares could interfere with the conditions of the said transactions, to the detriment of the company's shareholders or the company itself.
§5 The prohibitions provided for in the caput and in §§ 1, 2, and 3, item I, will cease to have effect as soon as the company discloses the relevant fact to the market, unless trading with the shares could interfere with the conditions of the said transactions, to the detriment of the company's shareholders or the company itself.
§6 The prohibition provided for in the caput does not apply to the acquisition of shares that are in treasury, through private negotiation, resulting from the exercise of a purchase option according to a stock option grant plan approved in a general meeting.
§7 The prohibitions provided for in the caput and in §§ 1 to 3 do not apply to transactions carried out by the publicly-held company itself, controlling shareholders, direct or indirect, directors, members of the board of directors, the supervisory board and any bodies with technical or advisory functions, created by statutory provision, in accordance with a trading policy approved in accordance with art. 15.
§ 6 The prohibition provided for in the caput does not apply to the acquisition of shares that are in treasury, through private negotiation, resulting from the exercise of a purchase option according to a stock option grant plan approved in a general meeting, or when it is the grant of shares to administrators, employees or service providers as part of remuneration previously approved in a general meeting.
§ 7 The prohibitions provided for in the caput and in §§ 1 to 3 do not apply to transactions carried out by the publicly-held company itself, controlling shareholders, direct or indirect, directors, members of the board of directors, the supervisory board and any bodies with technical or advisory functions, created by statutory provision, in accordance with the procedures provided for in art. 15-A.
Art. 14. If any agreement or contract has been entered into aiming at the transfer of respective shareholding control, or if an option or mandate has been granted for the same purpose, as well as if there is an intention to promote a merger, total or partial spin-off, consolidation, transformation or corporate reorganization, and while the operation is not made public through the publication of a relevant fact, the company's board of directors cannot deliberate the acquisition or alienation of its own issued shares.
Art. 14. If any agreement or contract has been entered into aiming at the transfer of respective shareholding control, or if an option or mandate has been granted for the same purpose, as well as if there is an intention to promote a merger, total or partial spin-off, consolidation, transformation or corporate reorganization, and while the operation is not made public through the disclosure of a relevant fact, the company's board of directors cannot deliberate the acquisition or alienation of its own issued shares.
TRADING POLICY
Art. 15. The publicly-held company may, by resolution of the board of directors, approve a trading policy for its issued shares by itself, controlling shareholders, direct or indirect, directors, members of the board of directors, the supervisory board and any bodies with technical or advisory functions, created by statutory provision.
§1 The trading policy referred to in the caput cannot be approved or altered pending a relevant act or fact not yet disclosed, and must necessarily:
I - have the express adherence of the persons mentioned in the caput who wish to benefit from it, who must strictly observe it; and II - include the prohibition of trading, at minimum, during the period of 15 (fifteen) days prior to the disclosure of the company's quarterly (ITR) and annual (DFP and IAN) information; and, II – include the prohibition of trading, at minimum, during the period of 15 (fifteen) days prior to the disclosure of the company's quarterly (ITR) and annual (DFP) information; and
III - adopt procedures that ensure that under no circumstances will the company trade its own shares during the prohibition periods established in this Instruction and in the trading policy itself.
§2 At the company's discretion, the adherence referred to in item I of the preceding paragraph may include the detailed indication of the interested party's own trading policy, which must observe the same minimum elements referred to in the preceding paragraph.
§ 3 The acquisition of shares issued by the company is permitted during the period referred to in item II of § 1 by administrators, members of the supervisory board and of any bodies with technical or advisory functions of the company, as well as of its subsidiaries and affiliates, created by statutory provision, carried out in accordance with an investment plan approved by the company, provided that:
I – the company has approved a schedule defining specific dates for the disclosure of ITR and DFP forms; and II – the investment plan establishes:
a) the irrevocable and unalterable commitment of its participants to invest previously established values, on the dates set forth therein; b) the impossibility of adhering to the plan pending an undisclosed relevant fact to the market, and during the 15 (fifteen) days preceding the disclosure of the ITR and DFP forms; c) the obligation to extend the purchase commitment, even after the end of the originally planned period of the participant's binding to the plan, pending an undisclosed relevant fact to the market, and during the 15 (fifteen) days preceding the disclosure of the ITR and DFP forms; and
d) obligation of its participants to revert to the company any avoided losses or gains made in transactions with shares issued by the company, resulting from any alteration in the disclosure dates of the ITR and DFP forms, calculated through reasonable criteria defined in the plan itself.
TRADING POLICY AND INVESTMENT PLAN
Art. 15. The publicly-held company may, by resolution of the board of directors, approve a trading policy for its issued shares, containing rules additional to those provided for in Law No. 6.404, of 1976, and in this Instruction.
Sole paragraph. The trading policy referred to in the caput may cover transactions carried out by itself, controlling shareholders, direct or indirect, directors, members of the board of directors, the supervisory board and any bodies with technical or advisory functions, created by statutory provision.
Art. 15-A. Controlling shareholders, direct or indirect, directors, members of the board of directors, the supervisory board and any bodies with technical or advisory functions, created by statutory provision, or anyone who, by virtue of their position, function or role in the publicly-held company, its parent, its subsidiaries or affiliates, has knowledge of the information relating to the relevant act or fact, may formalize individual investment plans regulating their transactions with shares issued by the company.
§ 1 The investment plans referred to in the caput may allow trading of shares issued by the company during the periods provided for in the caput and in §§ 1 to 3 of art. 13, provided that:
I – they are formalized in writing before the Director of Investor Relations before the carrying out of any transactions; II – they establish, in an irrevocable and unalterable manner, the dates and the values or quantities of the transactions to be carried out by the participants; and III – provide for a minimum period of 6 (six) months for the plan itself, its possible modifications and cancellation to take effect.
§ 2 The investment plans referred to in the caput may allow trading of shares issued by the company during the periods provided for in § 4 of art. 13, provided that, in addition to observing the provisions of § 1:
I – the company has approved a schedule defining specific dates for the disclosure of the ITR and DFP forms; and II – oblige its participants to revert to the company any avoided losses or gains made in transactions with shares issued by the company, resulting from any alteration in the disclosure dates of the ITR and DFP forms, calculated through reasonable criteria defined in the plan itself.
§ 3 Participants are prohibited from:
I – maintaining more than one investment plan in force simultaneously; and II – carrying out any operations that nullify or mitigate the economic effects of the transactions to be determined by the investment plan.
§ 4 The board of directors must verify, at least semi-annually, the adherence of the transactions carried out by the participants to the investment plans formalized by them.
§ 5 The use of the prerogative provided for in this article must be disclosed in the company's trading policy.
DISCLOSURE POLICY
Art. 16. The publicly-held company must, by resolution of the board of directors, adopt a policy for the disclosure of relevant acts or facts, including procedures relating to the maintenance of confidentiality regarding undisclosed relevant information.
Art. 16. The publicly-held company must, by resolution of the board of directors, adopt a policy for the disclosure of relevant acts or facts, including, at minimum, the channel or channels of communication it uses to disseminate information on relevant acts and facts in accordance with art. 3, §4, and the procedures relating to the maintenance of confidentiality regarding undisclosed relevant information.
§1 The company must formally communicate the terms of the resolution to controlling shareholders and to persons who hold or will hold the positions referred to in art. 13, obtaining their respective formal adherence, in an instrument that must be filed at the company's headquarters while the person maintains a link with it, and for five years, at minimum, after their dismissal.
§2 The company must keep at its headquarters, available to the CVM, the list of persons mentioned in the caput of this article and their respective qualifications, indicating position or function, address and registration number in the National Registry of Legal Entities or the National Registry of Individuals, updating it immediately whenever there is a modification.
COMMON PROVISIONS TO TRADING AND DISCLOSURE POLICIES
Art. 17. The approval or alteration of the trading policy and the disclosure policy of the publicly-held company must be communicated to the CVM and, if applicable, to the stock exchange and over-the-counter market organized entity in which the securities issued by the company are admitted to trading, the communication must be accompanied by a copy of the resolution and the full text of the documents that govern and integrate the said policies.
§1 Without prejudice to subsequent investigation and sanction, the CVM may determine the improvement or alteration of the trading policy, if it considers that its content does not prevent the use of relevant information in carrying out the transaction, or of the disclosure policy, if it considers that it does not adequately meet the terms of this Instruction.
§2 The trading and disclosure policies may be approved jointly, and constitute a single set of rules and procedures.
§3 The company, upon approval of the trading and disclosure policies, must indicate a director responsible for their execution and monitoring.
SERIOUS OFFENSE
Art. 18. A serious offense, for the purposes provided for in § 3 of art. 11 of Law No. 6.385/76, is constituted by the transgression of the provisions of this Instruction.
Sole paragraph. The CVM must communicate to the Public Prosecutor's Office the occurrence of the events provided for in this Instruction that constitute a crime.
FINAL AND TRANSITORY PROVISIONS
Art. 19. Any change in the facts or intentions object of the declarations made in accordance with this Instruction must be disclosed immediately, rectifying or amending the previous declaration.
CVM INSTRUCTION NO. 358, OF JANUARY 3, 2002
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Art. 20. The prohibitions and communication obligations established in this Instruction:
I - apply to both transactions carried out on stock exchanges and in the over-the-counter market, organized or not, as well as those carried out without the intervention of an institution that is part of the distribution system; and II - extend to transactions carried out directly or indirectly by the persons referred to therein, whether such transactions take place through a controlled company or through third parties with whom a contract of trust or portfolio management or actions is maintained. Sole Paragraph. Indirect transactions are not considered those carried out by investment funds of which the persons mentioned in this Instruction are unitholders, provided that such funds are not exclusive, nor can the administrator's trading decisions be influenced by the unitholders.
Art. 21. The rules of this Instruction apply to sponsoring companies of Level II and III BDR programs, insofar as they are not incompatible with the provisions applicable in the countries where the respective securities were issued.
Art. 22. The General Superintendent of CVM is authorized to approve rules regarding electronic procedures for the submission of information.
Art. 23. Non-compliance with the obligations contained in arts. 11, § 2, 12 and 16 of this Instruction entails the application of a daily coercive fine, which will apply from the first business day following the end of the deadline for the delivery of information, regardless of notification, in the amount of R$ 500.00 (five hundred reais).
Art. 24. The approval of the policy for the disclosure of relevant acts or facts and the procedures of the publicly-held company provided for in art. 16 must be carried out within sixty days after the entry into force of this Instruction.
Art. 25. The persons referred to in art. 11 will be obliged to carry out the communications provided for therein after the expiration of the period indicated in the previous article.
Art. 26. CVM Instruction No. 31, of February 8, 1984, CVM Instruction No. 69, of September 8, 1987, art. 3 of CVM Instruction No. 229, of January 16, 1995, the sole paragraph of art. 13 of CVM Instruction No. 202, of December 6, 1993, and arts. 3 to 11 of CVM Instruction No. 299, of February 9, 1999, are revoked.
EFFECTIVE DATE
Art. 27. This Instruction enters into force 90 (ninety) days after its publication in the Official Gazette of the Union.
Original signed by
JOSÉ LUIZ OSORIO DE ALMEIDA FILHO
President
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Amended 9 times · last 2021-08-23
This document supersedes: CVM Instruction No. 299 of February 9, 1999, as amended by CVM Instruction No. 345/00, CVM Instruction No. 229 of January 16, 1995 (Revoked) - Closed Company Registration Cancellation, CVM Instruction No. 202 of December 6, 1993
Against CVM Instruction No. 299 of February 9, 1999, as amended by CVM Instruction No. 345/00 (1999-02-09)
127 new obligations · 1 changed obligation · 2 deadlines changed · 2 changes of who is bound · 39 not carried over
18 obligations are the same in both texts.
The first 60 of 127 are shown.
“Not carried over” means the sentence has no counterpart in this text; the rule can still be in force in another text.
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