2022-07-13
Added · Updated
CVM Resolution No. 161 establishes the registration requirements, procedures, and internal controls for coordinators of public distribution offers of securities. It mandates that only registered institutions acting as coordinators in distribution contracts may perform this role, subject to specific eligibility criteria including corporate structure, adequate human and technological resources, and the appointment of statutory directors responsible for intermediation and compliance. The resolution outlines the application process, including a 60-day analysis period by the Securities Registration Superintendence (SRE), and defines grounds for registration cancellation or suspension, such as failure to meet requirements or acting with negligence in fraudulent offers. It further imposes ongoing obligations, such as maintaining a public website with ethical codes and internal control descriptions, submitting annual reference forms, and adhering to strict conduct rules prohibiting guaranteed returns or misleading projections.
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SECURITIES AND EXCHANGE COMMISSION OF BRAZIL
Rua Sete de Setembro, 111/2-5th and 23-34th Floors, Center, Rio de Janeiro/RJ – ZIP: 20050-901 – Brazil - Tel.: (21) 3554-8686 Rua Cincinato Braga, 340/2nd, 3rd and 4th Floors, Bela Vista, São Paulo/ SP – ZIP: 01333-010 – Brazil - Tel.: (11) 2146-2000 SCN Q.02 – Bl. A – Ed. Corporate Financial Center, S.404/4th Floor, Brasília/DF – ZIP: 70712-900 – Brazil -Tel.: (61) 3327-2030/2031 www.cvm.gov.br 1
CVM RESOLUTION NO. 161, OF JULY 13, 2022
WITH THE AMENDMENTS INTRODUCED BY
CVM RESOLUTIONS NO. 173/22, 207/24 AND 222/24.
Provides for the registration of coordinators of public distribution offers of securities and for the rules, procedures and internal controls to be observed in the intermediation of such offers.
THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION OF BRAZIL – CVM makes public that the Collegiate Board, in a meeting held on July 7, 2022, based on the provisions of arts. 15, § 1, item I, 16, items I and II, 18, item I, “a”, and 19, § 5, item II, of Law No. 6.385, of December 7, 1976, APPROVED the following Resolution:
CHAPTER I – SCOPE AND PURPOSE
Art. 1. This Resolution provides for the procedure and the requirements necessary for the registration of coordinators of public distribution offers of securities (“coordinators”).
Sole Paragraph. The provisions of this Resolution do not cover:
I – the intermediation of transactions carried out in organized securities markets; II – the activity of the intermediary institution that is part of the distribution consortium and does not act as a coordinator; III – the activity of an electronic platform for participatory investment; IV – the authorization for distribution, as defined in specific regulations, granted to:
a) securitization companies, in the case of securities issued by them; b) securities portfolio administrators, in the case of shares of investment funds of which they are administrator or manager; and c) issuers with high market exposure, regarding their promissory notes.
Art. 2. Only institutions registered with the CVM in accordance with this Resolution and that are signatories, in the capacity of coordinators, of a securities distribution contract subject to the public offer may act as coordinators of a public offer.
CVM RESOLUTION NO. 161, OF JULY 13, 2022
CHAPTER II – REGISTRATION OF COORDINATOR OF PUBLIC OFFERS
Section I – Requirements for Registration
Art. 3. The following may be registered as coordinators:
I – financial institutions; and
II – other companies that act in the distribution of securities as agents of the issuing company.
§ 1. The legal entities referred to in item II of the caput of Art. 3 may only act as coordinators in public offers subject to the automatic registration procedure if they are subject to supervision by a self-regulatory entity that has entered into a specific technical cooperation agreement with the CVM.
§ 2. The agreement referred to in § 1 must provide for:
I – market participants covered by supervision; II – coordination of supervisory efforts and exchange of information between the CVM and the self-regulatory entity; III – utilization of self-regulation activity regarding the application of penalties and the execution of commitment terms; and IV – supervision by the CVM over the self-regulatory entity regarding compliance with the agreement.
Art. 4. For the purposes of obtaining and maintaining registration with the CVM, the coordinator must meet the following requirements:
I – be constituted as a legal entity in Brazil and be regularly registered in the National Registry of Legal Entities – CNPJ; II – in the case of the companies referred to in item II of the caput of Art. 3, have the exercise of securities intermediation in its corporate purpose; III – constitute and maintain human and technological resources adequate to its size and area of activity; IV – assign responsibility for the activity of intermediation of public distribution offers of securities to a statutory director; V – assign responsibility for compliance with the rules, policies, procedures and internal controls provided for in this Resolution to a statutory director, who cannot be the same person referred to in item IV; and
CVM RESOLUTION NO. 161, OF JULY 13, 2022
VI – its direct or indirect controlling partners, administrators and statutory directors must meet the following requirements:
a) have an impeccable reputation; b) not be disqualified or suspended from holding office in financial institutions and other entities authorized to operate by the CVM, the Central Bank of Brazil, the Superintendence of Private Insurance – SUSEP or the National Superintendence of Complementary Pension – PREVIC; and c) not have been convicted of bankruptcy crime, malfeasance, bribery, extortion, embezzlement, money “laundering” or concealment of assets, rights and values, against the popular economy, the economic order, consumer relations, public faith or public property, the national financial system, or criminal penalty that prohibits, even temporarily, access to public office, by a final and unappealable decision, except in the case of rehabilitation.
§ 1. The directors responsible for the activity of intermediation of public offers and for compliance with the rules, policies, procedures and internal controls referred to in this Resolution:
I – must exercise their functions independently; and II – cannot act in functions related to the administration of securities portfolios, securities consulting, fiduciary agent activity or in any activity that limits their independence, within or outside the institution.
§ 2. The attribution of responsibility provided for in items IV and V of the caput must be recorded in the articles of association or in a meeting minutes of its board of directors.
§ 3. The technological resources referred to in item III of the caput must:
I – be protected against tampering; and
II – maintain records that allow for audits and inspections.
Art. 5. In the event of impediment of any of the directors referred to in items IV and V of Art. 4 for a period exceeding 30 (thirty) days, their replacement must be carried out, and the CVM must be notified of such fact, in writing, within 7 (seven) business days from the date of replacement.
CVM RESOLUTION NO. 161, OF JULY 13, 2022
Section II – Procedures for Obtaining Coordinator Registration
Art. 6. The registration application for a coordinator must be sent to the Securities Registration Superintendence – SRE and be accompanied by the documents indicated in Annex A.
Art. 7. The SRE has a total period of 60 (sixty) days to analyze the registration application, counted from the date of protocol of the last document that completes the application file, observed that drafts and any other documents containing gaps whose completion, at the discretion of the SRE, is relevant for the analysis of the application will be disregarded.
§ 1. The period referred to in the caput may be suspended only once, if the SRE requests additional information or documents from the applicant.
§ 2. The applicant has 20 (twenty) days to comply with the requirements formulated by the SRE.
§ 3. The period for compliance with the requirements provided for in § 2 may be extended, only once, by 10 (ten) days, upon prior and reasoned request formulated by the applicant to the SRE, in which case the period referred to in the caput remains suspended.
§ 4. The SRE must express its opinion regarding the compliance with the requirements and the approval of the registration application within the remaining period for the completion of the analysis, as provided for in the caput.
§ 5. The SRE may reiterate unfulfilled requirements, as well as make new requests based on the documents and information received in compliance with the requirements, establishing compatible periods for their compliance, without causing the suspension of the period referred to in the caput.
§ 6. If, in addition to the information and documents presented in compliance with the requirements, relevant changes have been made to documents or information that do not arise from the fulfillment of requirements, the SRE may point out the occurrence of a new fact.
§ 7. The occurrence of a new fact must be communicated to the applicant and causes a new suspension of the period referred to in the caput, for the maximum period determined by the SRE for the delivery of additional information and documents requested, if applicable.
§ 8. After receiving the information and documents referred to in § 7, the SRE must express its opinion on the registration application within the remaining period for the completion of the analysis, as provided for in the caput.
§ 9. Failure to comply with the periods mentioned in §§ 2, 3 and 7 results in automatic denial of the registration application.
CVM RESOLUTION NO. 161, OF JULY 13, 2022
§ 10. The absence of expression by the SRE within the period established in the caput results in automatic approval of the registration application.
Art. 8. The CVM may enter into a technical cooperation agreement for the prior analysis of the registration applications referred to in Art. 6 with entities that, in the judgment of the Autarchy, prove to have adequate structure and technical capacity to comply with the provisions of this Resolution.
§ 1. The agreements referred to in the caput must establish rules that deal, at a minimum, with:
I – the periods and procedures that must be observed by the entity participating in the agreement in the conduct of the prior analyses of the registration applications referred to in Art. 6; II – the possibility for the applicant of the registration application to send the information and documents in accordance with Art. 6 directly to the entity participating in the agreement; III – the minimum content of the technical report to be sent to the CVM indicating the results of the prior analysis carried out by the entity participating in the agreement regarding compliance with the provisions of Art. 6; IV – the obligations of the entity participating in the agreement, including with respect to:
a) the criteria to be applied in the prior analysis of compliance with the provisions of Art. 6 by the applicant; and b) the production of periodic reports on its registration application analysis activities; V – the submission to supervision, by the CVM, of the performance of the entity and its collaborators in compliance with the provisions of the agreement and this Resolution; and VI – the consequences of non-compliance with the agreement by the entity.
§ 2. In conducting the prior analysis of the registration application, the entity participating in the agreement may request additional information or documents from the applicant that prove necessary to verify compliance with the provisions of Art. 4.
§ 3. The procedures provided for in §§ 1 to 10 of Art. 7 of this Resolution apply to the prior analysis of the registration application, and the respective periods for the practice of acts that fall to the entity participating in the agreement must be set at levels that enable compliance with the provisions of the caput of Art. 7, considering, inclusive, the provisions of § 5 of this article.
§ 4. The expression issued by the entity participating in the agreement in the technical report regarding compliance with Art. 6 does not replace or bind the decision of the SRE regarding the approval or denial of the registration application.
§ 5. After receiving the expression issued by the entity participating in the agreement regarding compliance with Art. 4, the SRE must express its opinion on the registration application within 10 (ten) days.
CHAPTER III – CANCELLATION OF COORDINATOR REGISTRATION
Section I – Cancellation of Registration
Art. 9. The SRE must cancel the coordinator’s registration in the following cases:
I – at the request of the coordinator itself;
II – when it is found that the registration was obtained through false declarations or other illicit means; III – when it is found that the coordinator does not meet the requirements and conditions established in this Resolution; IV – when it is found that the coordinator acted with lack of diligence, omission or intent in a public distribution offer deemed illegal or fraudulent; V – declaration of bankruptcy, judicial or extrajudicial liquidation or dissolution of the coordinator; or VI – suspension of the coordinator’s registration for a period exceeding 12 (twelve) months.
§ 1. The SRE must previously notify the coordinator of the opening of a cancellation procedure for its registration, in accordance with items II, III, IV and VI of the caput, granting it a period of 10 (ten) business days, counted from the date of receipt of the notification, extendable by an equal period, to present its defense reasons or regularize its registration.
§ 2. From the decision to cancel the registration according to the provisions of items II, III, IV and VI of the caput, an appeal may be filed to the CVM, with suspensive effect, in accordance with current regulations.
Section II – Suspension of Registration
Art. 10. The SRE must suspend the coordinator’s registration if the obligations provided for in Arts. 11 and 12 of this Resolution are not complied with for a period exceeding 12 (twelve) months.
§ 1. The suspension referred to in the caput may be reversed upon proof of compliance with the overdue periodic obligations.
§ 2. The SRE must inform the coordinator of the suspension of its registration by means of a letter sent to the electronic address recorded in its registry, and by means of a communication on the CVM’s page on the worldwide computer network.
CHAPTER IV – PROVISION OF INFORMATION
Art. 11. The coordinator must maintain a page on the worldwide computer network with the following updated information:
I – code of ethics, in order to concretize the duties of the coordinator provided for in Chapter V of this Resolution; II – rules, procedures and description of internal controls, prepared for compliance with this Resolution; and III – subscription and trading policy of securities by administrators, employees, collaborators and by the coordinator itself.
Sole Paragraph. In the case of institutions that are part of the same economic group, it is admitted that the documents referred to in this article cover multiple institutions, provided that the institutions formalize this option in their own codes, rules, procedures, controls or policies or, in the absence of such documents, in a meeting minutes of its board of directors or management.
Art. 12. By March 31 of each year, the coordinator must send to the CVM, through an electronic system available on the CVM’s page on the worldwide computer network, a reference form, the content of which must reflect Annex B.
CHAPTER V – CODE OF CONDUCT
Section I – General Rules
Art. 13. It is the duty of the coordinator:
I – to take all precautions and act with high standards of diligence, being responsible for lack of diligence or omission, to ensure that the information provided is true, consistent, correct and sufficient, allowing investors to make an informed decision regarding the offer, observing the rules provided for in the norm that provides for public distribution offers of securities;
CVM RESOLUTION NO. 161, OF JULY 13, 2022
II – publicly disclose offers in accordance with the terms established in the norm that provides for the primary or secondary public distribution of securities offered in regulated markets; III – disclose any conflicts of interest to investors; IV – ensure that the investment is adequate to the level of sophistication and risk profile of investors, in accordance with the specific CVM regulation on the subject; V – ensure that the forms of communication, advertising and language used in its interlocution with investors are adequate to the complexity of the offer and to the level of sophistication of investors; VI – keep up to date, in perfect order, in the form and deadlines established in its internal rules and regulation, all documentation related to the intermediation operations of public distribution offers of securities; and VII – ensure that the information disclosed and the allocation of the offer do not favor related parties, to the detriment of unrelated parties. VII – ensure that the information disclosed and the allocation of the offer do not favor affiliated persons, to the detriment of non-affiliated persons.
Section II – Prohibitions
Art. 14. It is prohibited for the coordinator:
I – to assure or suggest the existence of a guarantee of future results or exemption from risk for the investor; and II – to make profitability projections inconsistent with the offer documents.
CHAPTER VI – RULES, PROCEDURES AND INTERNAL CONTROLS
Section I – General Rules
Art. 15. The coordinator must guarantee, through adequate internal controls, permanent compliance with current norms, policies and regulations, referring to the different registration procedures for public offers, to the activity of intermediation of public distribution offers of securities itself, and to ethical and professional standards.
CVM RESOLUTION NO. 161, OF JULY 13, 2022
Art. 16. The coordinator must exercise its activities in a way to:
I – ensure that all professionals performing functions related to the intermediation of public distribution offers of securities know the code of ethics and applicable norms, as well as the policies and manuals provided for by this Resolution and the provisions regarding internal controls; and II – identify, administer and mitigate or, when possible, eliminate any conflicts of interest that may affect their performance and fulfillment of obligations by persons performing functions related to the public offer of securities.
Art. 17. The coordinator must establish mechanisms to:
I – ensure control of relevant and non-public information to which its administrators, employees and collaborators have access; II – ensure the existence of periodic security tests for information systems, especially those maintained in electronic media; and III – implement and maintain a training program for administrators, employees and collaborators who have access to relevant and non-public information.
Art. 18. The director responsible for compliance with the rules, policies, procedures and internal controls provided for in this Resolution must send to the coordinator’s management bodies, by the last business day of April of each year, a report relating to the civil year immediately preceding the date of delivery, containing:
I – the conclusions of the examinations carried out; II – the recommendations regarding any deficiencies, with the establishment of remediation schedules, if applicable; and III – the expression of the responsible director regarding the deficiencies found in previous verifications and the measures planned, according to a specific schedule, or effectively adopted to remedy them.
§ 1. The report referred to in the caput must be sent to the CVM, through an electronic system available on the CVM’s page on the worldwide computer network and remain available for the CVM at the coordinator’s headquarters.
COMMISSION OF SECURITIES AND EXCHANGE COMMISSION Rua Sete de Setembro, 111/2-5º and 23-34º Floors, Center, Rio de Janeiro/RJ – CEP: 20050-901 – Brazil - Tel.: (21) 3554-8686 Rua Cincinato Braga, 340/2º, 3º and 4º Floors, Bela Vista, São Paulo/ SP – CEP: 01333-010 – Brazil - Tel.: (11) 2146-2000 SCN Q.02 – Bl. A – Ed. Corporate Financial Center, S.404/4º Floor, Brasília/DF – CEP: 70712-900 – Brazil -Tel.: (61) 3327-2030/2031 www.cvm.gov.br CVM RESOLUTION NO. 161, OF JULY 13, 2022
§ 1º The report referred to in the main text must be submitted to the administrative bodies of the coordinator, and forwarded to the SRE within 5 (five) business days after its approval.
Section II – Segregation of Activities
Art. 19. The exercise of intermediation of public offerings of distribution of securities must be segregated from other activities exercised by the coordinator itself or by other legal entities of its economic group with which there is a potential conflict of interest. Sole paragraph. The provisions of the main text must be achieved through the adoption of operational procedures that aim to:
I – guarantee the physical segregation of facilities between the area responsible for the intermediation and distribution of securities and other areas of operation of the coordinator with which there is a potential conflict of interest; II – ensure the proper use of facilities, equipment and information common to more than one sector of the institution; III – preserve relevant and non-public information and allow the identification of persons who have access to them; and IV – restrict access to files and allow the identification of persons who have access to relevant and non-public information.
Art. 20. To comply with the provisions of Art. 19, the coordinator must maintain written manuals, which detail the rules and procedures adopted regarding:
I – segregation of activities with which there is a potential conflict of interest, with the objective of demonstrating the total separation of areas or presenting the adopted segregation rules, with discrimination, at minimum, those relating to the facilities, equipment and information referred to in item II of Art. 19; and II – confidentiality, defining the adopted confidentiality and conduct rules, with detail of the applicable requirements, at minimum, for its partners, administrators, collaborators and employees.
CHAPTER VII – MAINTENANCE OF ARCHIVES
Art. 21. The coordinator must maintain, for a minimum period of 5 (five) years, or for a longer period by express determination of the CVM, all documents and information required by this Resolution, as well as all correspondence, internal and external, reports and opinions related to the exercise of its functions. § 1º Digitized images are admitted in substitution for original documents, provided that the process is carried out in accordance with the law that provides for the preparation and archiving of public and private documents in electronic media, and with the decree that establishes the technique and requirements for the digitization of these documents. § 2º The original document may be discarded after its digitization, except if it presents material damage that prejudices its legibility.
CHAPTER VIII – PENALTIES AND PENALTY FINE
Art. 22. A serious offense is considered, for the purposes of Art. 11, § 3º, of Law No. 6.385, of December 7, 1976, the exercise of activities regulated by this Resolution by an unauthorized person or authorized based on false declarations or documents, as well as the offense to the provisions of Arts. 13, 14, 17, items I and II, 19 and 21 of this Resolution. Art. 22-A. Coordinators are subject to the daily fine provided for in the specific norm that deals with penalty fines due to non-compliance with the deadlines established in this Resolution for the delivery of periodic and occasional information, without prejudice to the provisions of Art. 11 of Law No. 6.385, of 1976.
CHAPTER IX – FINAL AND TRANSITIONAL PROVISIONS
Art. 23. Coordinators who have already carried out at least one public offering of distribution of securities, within the 24 (twenty-four) months prior to the date of publication of this Resolution, are authorized to conduct new public offerings of distribution of securities under the specific regulation until they complete the process of obtaining registration, provided that the protocol of the coordinator registration request takes place within 180 (one hundred and eighty) days after the entry into force of this Resolution. Art. 24. This Resolution enters into force on January 2, 2023. Electronically signed by MARCELO BARBOSA President
COMMISSION OF SECURITIES AND EXCHANGE COMMISSION Rua Sete de Setembro, 111/2-5º and 23-34º Floors, Center, Rio de Janeiro/RJ – CEP: 20050-901 – Brazil - Tel.: (21) 3554-8686 Rua Cincinato Braga, 340/2º, 3º and 4º Floors, Bela Vista, São Paulo/ SP – CEP: 01333-010 – Brazil - Tel.: (11) 2146-2000 SCN Q.02 – Bl. A – Ed. Corporate Financial Center, S.404/4º Floor, Brasília/DF – CEP: 70712-900 – Brazil -Tel.: (61) 3327-2030/2031 www.cvm.gov.br CVM RESOLUTION NO. 161, OF JULY 13, 2022
ANNEX A TO CVM RESOLUTION NO. 161, OF JULY 13, 2022
Documents for registration purposes – Art. 6º
Art. 1º The coordinator registration request must be accompanied by the following documents:
I – request signed by the legal representative; II – simple copy of the constituent acts in their current and updated version, duly registered in the competent registry office, which must contain provision for the exercise of the activity and the indication of the responsible person before the CVM; III – items 1, 2, 4 and 5 of the reference form contained in Annex B of this Resolution duly filled out and updated until the last business day of the month prior to the protocol of the registration request; and IV – item 3 of the reference form contained in Annex B of this Resolution duly filled out and updated until the last business day of the month prior to the protocol of the registration request, with the information regarding the applicant's intentions on such topics.
COMMISSION OF SECURITIES AND EXCHANGE COMMISSION Rua Sete de Setembro, 111/2-5º and 23-34º Floors, Center, Rio de Janeiro/RJ – CEP: 20050-901 – Brazil - Tel.: (21) 3554-8686 Rua Cincinato Braga, 340/2º, 3º and 4º Floors, Bela Vista, São Paulo/ SP – CEP: 01333-010 – Brazil - Tel.: (11) 2146-2000 SCN Q.02 – Bl. A – Ed. Corporate Financial Center, S.404/4º Floor, Brasília/DF – CEP: 70712-900 – Brazil -Tel.: (61) 3327-2030/2031 www.cvm.gov.br CVM RESOLUTION NO. 161, OF JULY 13, 2022
ANNEX B TO CVM RESOLUTION NO. 161, OF JULY 13, 2022
REFERENCE FORM
Establishes the content of the Reference Form for Public Offering Coordinators (information provided based on positions of December 31) PUBLIC OFFERING COORDINATORS
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Amended 1 time · last 2022-11-29
Source: Comissão de Valores Mobiliários — original document · Summary generated with machine assistance and reviewed before publication; the authoritative text is the regulator's original document. How RegAlert works
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