CVM Instruction No. 584 of March 22, 2017 (Revoked)

SECURITIES AND EXCHANGE COMMISSION OF BRAZIL - CVM Rua Sete de Setembro, 111/2-5th and 23-34th Floors – Center – Rio de Janeiro - RJ – CEP: 20050-901 – Brazil Tel.: (21) 3554-8686 - www.cvm.gov.br

CVM INSTRUCTION NO. 584, OF MARCH 22, 2017

Provides for the securities distribution program and amends and adds provisions to CVM Instruction No. 400, of December 29, 2003, and to CVM Instruction No. 480, of December 7, 2009.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION OF BRAZIL - CVM makes public that the Collegiate Board, in a meeting held on March 8, 2017, based on the provisions of Articles 4, item VI, 8, item I, and 19, § 5º, of Law No. 6.385, of December 7, 1976, APPROVED the following Instruction:

Art. 1. Section 4 of Article 4 of CVM Instruction No. 400, of December 29, 2003, shall be effective with the following wording:

“§ 4º ......
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IV – without prejudice to the provisions of Articles 8 and 9, the following deadlines shall apply:
a) Analysis Deadline: 10 (ten) business days; b) Compliance with Requirements Deadline: 10 (ten) business days; and c) Verification of Compliance with Requirements Deadline: 5 (five) business days.” (NR)

Art. 2. The chapter “Securities Distribution Programs” of CVM Instruction No. 400, of 2003, shall be effective with the following wording:

“SECURITIES DISTRIBUTION PROGRAMS
Section I – Registration of the distribution program

Art. 11. An open company may request the Securities Registration Superintendency – SRE to register a securities distribution program (“distribution program”), with the objective of, in the future, carrying out public distribution offers, if it:

I – complies with one of the following requirements:
a) has carried out registered public distribution offers of any of the securities indicated in the sole paragraph of this article in a minimum value of R$ 500,000,000.00 (five hundred million reais) in the last 48 (forty-eight) months prior to the date of the distribution program registration request; or b) whose market value of shares in circulation is equal to or greater than R$ 2,000,000,000.00 (two billion reais), according to the closing quote on the last business day of the quarter prior to the date of the distribution program registration request; II – has had a securities issuer registration for more than 24 months and is in an operational phase; and III – has timely complied, in the last 12 months, with the delivery deadlines for the reference form and annual and quarterly financial statements established in the specific regulation.

Sole paragraph. Only promissory notes and simple debentures, with or without guarantee, and without a clause for exchange for shares or other securities, may be offered within the scope of the distribution program.

Art. 12. The request for registration of a distribution program must be submitted to the CVM by the issuing company, assisted by an intermediary institution that will be responsible, under the provisions of Articles 56 to 56-A, for the information and its verification.

Art. 12-A The request for registration of a distribution program must be accompanied by:
I – cover page, in the format of the prospectus cover provided for in Annex III, including the identification of the offeror and the intermediary institutions involved, as well as the indication of the securities to be distributed and the total value of the program; II – prospectus prepared in accordance with Annex III, containing, whenever applicable, specific information regarding each debenture to be distributed, including regarding target audience, type of guarantee, type of remuneration and monetary update, existence or not of the possibility of early amortization or redemption, and provision for the possible periodicity of remuneration payment; III – draft issuance deed containing the possible wordings according to the characteristics of the distributed debentures; IV – documents required in items 1, 3, 4, 6, 7, 8, 11, 14 and 14-B of Annex II, with the presentation of drafts being optional where applicable; and V – declaration by the investor relations director of the issuing company indicating which of the criteria established in item I of Article 11 it falls under, accompanied by the calculation memo made by the issuer.

§ 1º The financial statements that serve as the basis for the distribution program registration request cannot be accompanied by an independent audit report containing a modified opinion on the financial statements.

§ 2º The dates that should be referred to in the prospectus and that are not yet known or defined at the time of the distribution program registration request must be indicated in the prospectus in the form of blanks.

§ 3º The prospectus must include a warning that:
I – the information provided for in items 5, 6 and 11 of Annex III are subject to update and indicate the locations where the new versions of this information can be consulted; and II – the information regarding the deadlines and specific conditions of the offer, destination of resources and risk factors will be provided in the supplement to the prospectus related to the offers carried out based on the distribution program.

Art. 12-B The distribution program shall have a maximum term of 4 (four) years, counted from its registration by the CVM.

Art. 12-C The CVM has 20 (twenty) business days to analyze the distribution program registration request, counted from the date of filing, provided that the request is accompanied by all the documents identified in Art. 12-A.

§ 1º If any of the documents indicated in Art. 12-A are not filed with the registration request, the period referred to in the main text shall be counted from the date of filing of the last document that completes the instruction of the registration request.

§ 2º The period referred to in the main text may be interrupted only once, if the CVM requests, from the lead institution, with a copy to the issuing company, additional information or documents.

§ 3º The applicant has 40 (forty) business days to comply with the requirements formulated by the CVM.

§ 4º The provisions of §§ 2º and 3º of Article 9 of this Instruction apply to the distribution program registration request.

§ 5º The CVM has 10 (ten) business days to manifest itself regarding the compliance with the requirements and the approval of the registration request, counted from the date of filing of the documents and information delivered to comply with the requirements.

§ 6º Non-compliance with the deadline mentioned in § 3º implies automatic denial of the registration request.

§ 7º The absence of manifestation by the CVM within the deadlines mentioned in the main text and in § 5º implies automatic approval of the registration request.

§ 8º The distribution registration request concomitant with the distribution program registration request will be analyzed according to the deadlines and procedures established in this article, observing the provisions of Articles 12-E, § 1º, and 50 of this Instruction, with the disclosure of the preliminary supplement being linked to the simultaneous disclosure of the preliminary prospectus of the program.

Art. 12-D The distribution program may be cancelled:

I – upon request by the issuing company;
II – by decision of the CVM, if:
a) a public distribution offer linked to it is cancelled in accordance with Art. 19; or b) it is verified, after the closing of the offer, the occurrence of any of the hypotheses provided for in Art. 19, even if the illegality or violation of regulation was curable. III – automatically, by:
a) expiration of the distribution program deadline; b) closing of a public offer that represents the exhaustion of the value provided for the distribution program; or c) registration of a new distribution program.

Sole paragraph. The issuer whose distribution program is cancelled in the hypothesis of item II may only request the registration of a new distribution program after 12 (twelve) months counted from the decision to cancel the distribution program.

Section II – Offers linked to the distribution program

Art. 12-E After the registration of the distribution program, the offeror and the lead institution may request the automatic registration of a public distribution offer of the securities mentioned in the distribution program prospectus, by:

I – updating the information contained in the distribution program prospectus that has not been incorporated by reference; and II – presenting the following documents:

a) supplement to the prospectus, which must contain, mandatorily, a cover page, in the format of the prospectus cover provided for in Annex III, including the identification of the offeror and the lead institution involved in the offer, as well as the specific information of the offer in the format of items 1, 2, 3, 4, 7, 8, 10, 12 and 13 of Annex III; b) definitive versions of the documents indicated in item IV of Art. 12-A, the drafts and definitive versions being substantially identical; c) documents indicated in items 9, 12, 13, 14, 14-A, 14-C and 15 of Annex II; d) debenture issuance deed and proof of the registration request of the amendment at the Board of Trade; and e) rating agency report, if any.

§ 1º It is prohibited to carry out a public offer linked to the distribution program if:
I – the issuing company has not timely complied, in the last 12 months prior to the date of the request, with the delivery deadlines for the reference form and annual and quarterly financial statements established in the specific regulation; II – the financial statements that serve as the basis for the automatic registration request of the public distribution offer are accompanied by an independent audit report containing a modified opinion on the financial statements or a separate section containing relevant uncertainty related to operational continuity; or III – the issuing company or any of its controlled companies have defaulted on relevant debts and the information regarding this event required by the applicable accounting standards is not disclosed in a note to the latest annual financial statement or the latest quarterly information sent to the CVM.

§ 2º For the purposes of item III of § 1º, debt is understood as the financing liability represented by the totality of obligations that result in financial costs for the company.

§ 3º The documents provided for in item I and in items “b” and “d” of item II of Art. 12-E, when altered, must be forwarded in the manner indicated in § 3º of Art. 9 of this Instruction.

§ 4º The supplement to the prospectus must:
I – indicate the location of the distribution program prospectus or the worldwide computer network where the information indicated in items 5, 6 and 11 of Annex III can be consulted; II – contain in bold the following warning: “This Supplement is an integral part of the Issuer’s Distribution Program Prospectus and its information must be analyzed by the investor jointly with the information provided in the Distribution Program Prospectus”.

§ 5º In the case of the issuance of debentures meeting the requirements of Law No. 12.431, of June 24, 2011, the cover of the supplement to the prospectus and the announcement of the start of distribution must contain in bold:
I – the number and date of publication of the ordinance of approval by the responsible sectoral ministry; and II – the commitment to allocate the resources obtained in the approved investment project.

Art. 12-F After the registration of the program, the issuing company and the lead institution may disclose, at any time, a preliminary supplement for the purposes provided for in Articles 44, 45 and 50 of this Instruction.

§ 1º The disclosure of the preliminary supplement may be carried out before the filing of the automatic registration request for public distribution offer referred to in Art. 12-E, observing the provisions of item I and § 1º of that article.

§ 2º The provisions of Articles 42, § 1º, 46, § 1º, I and IV, § 2º and § 3º, and 53 of this Instruction apply to the preliminary supplement.

Art. 12-G The use of advertising material in offers linked to the distribution program does not depend on prior authorization by the CVM.

§ 1º The provisions of §§ 2º and 3º of Art. 50 of this Instruction apply to the advertising material.

§ 2º Without prejudice to the provisions of the main text, the CVM may, at any time, by motivated decision, request corrections, alterations or even the cessation of advertising.

§ 3º A copy of the advertising material must be sent to the CVM, through an electronic system available on the agency’s website on the worldwide computer network, on the same date of the disclosure of the notice provided for in Art. 53 of this Instruction.

Art. 12-H It is permitted for new intermediary institutions that did not participate in the preparation of the documents presented at the time of the registration of the distribution program to lead offers supported by this program.

Art. 12-I The lead institution of the offer will be responsible for:
I – preparing the preliminary supplement and the definitive 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.

Sole paragraph. The alteration of the characteristics of the distribution program depends on a prior request that will be analyzed within the deadlines provided for in Art. 12-C.

Art. 13. While an informatized system for granting registration and receiving documents is not available, the automatic registration request for public distribution offer will produce effects 5 (five) business days after the filing of the request at the CVM, which must be accompanied by the declaration referred to in item 14-C of Annex II of this Instruction.

Sole paragraph. The granting of automatic registration under the main text does not preclude the assessment of liability for violation of current regulations.” (NR)

Art. 3. Annex II of CVM Instruction No. 400, of 2003, shall be effective with the addition of item 14-C, with the following wording:

“14-C Declaration signed by the investor relations director of the issuing company confirming that the issuing company meets each of the requirements required in § 1º of Art. 12-E for the carrying out of a public distribution offer linked to a distribution program and expressly attesting that:
a) the issuing company complied, in the last 12 months prior to the date of the automatic registration request for public distribution offer linked to a distribution program, with the delivery deadlines for the reference form and annual and quarterly financial statements established in the specific regulation; b) the financial statements of the issuing company that serve as the basis for the automatic registration request for public distribution offer are not accompanied by an independent audit report containing a separate section containing relevant uncertainty related to operational continuity or a modified opinion on the financial statements; c) the issuing company or any of its controlled companies did not present an event of default on relevant debt that is not disclosed, according to the applicable accounting standards, in a note to the latest annual financial statement or the latest quarterly information sent to the CVM; and d) all documents required in Art. 12-E that accompany the automatic registration request, including the information incorporated by reference in the program prospectus, have been delivered, are complete and have been prepared in accordance with the content provided for in the specific regulations.” (NR)

Art. 4. Item 11 of Annex III of CVM Instruction No. 400, of 2003, shall be effective with the following wording:

“11. UPDATED BYLAWS OF THE ISSUER.

11.1. Attach the updated bylaws of the issuer or incorporate them by reference indicating the page on the worldwide computer network where it can be consulted.” (NR)

Art. 5. Art. 24 of CVM Instruction No. 480, of December 7, 2009, shall be effective with the following wording:

“Art. 24......
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§ 2º The issuer must redeliver the updated reference form on the date of the public distribution registration request, the distribution program registration request or the disclosure of the preliminary supplement, and the provisions contained in the notes of Annex 24 that deal with the public distribution registration request shall apply to the distribution program registration request and to the disclosure of the preliminary supplement.” (NR)

Art. 6. Arts. 1 and 2 of Annex 3 of CVM Instruction No. 480, of 2009, shall be effective with the following wording:

“Art. 1º ......
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Sole paragraph. To comply with the provision of item VIII, audit reports containing a modified opinion on the financial statements will not be accepted.” (NR)

“Art. 2º ......
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Sole paragraph. To comply with the provision of item XI, audit reports containing a modified opinion on the financial statements will not be accepted.” (NR)

Art. 7. In the exercise of 2017, companies may calculate the minimum value of offers provided for in Art. 11, I, “a”, considering the offers carried out in the last 60 (sixty) months prior to the date of the distribution program registration request.

Art. 8. This Instruction enters into force on the date of its publication.

Signed original by
LEONARDO P. GOMES PEREIRA
President