CVM Resolution No. 486 of August 17, 2005

CVM RESOLUTION NO. 486, OF AUGUST 17, 2005.

Amends CVM Resolutions No. 390, of May 8, 2001, and No. 457, of December 23, 2002.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION – CVM makes public that the Collegiate Board, in a meeting held on August 10, 2005, based on arts. 8, item I, and 11, §§ 5 to 8, of Law No. 6,385, of December 7, 1976,

DELIBERATED:

Art. 1 Arts. 7, 8 and 9 of CVM Resolution No. 390, of May 8, 2001, shall enter into force with the following wording:

“Art. 7 The interested party in the celebration of a settlement agreement may submit a written proposal to the CVM, in which it commits to:
I – cease the practice of activities or acts considered illegal, if applicable; and II – correct the irregularities pointed out, including indemnifying the damages caused to the market or to the CVM.

§ 1 The interested party must manifest its intention to celebrate a settlement agreement at the latest by the end of the deadline for presenting a defense, without prejudice to the burden of presenting such defense, which, in this case, must be forwarded to the General Superintendent.

§ 2 The complete proposal for a settlement agreement must be presented at the latest within 30 (thirty) days after the presentation of the defense.

§ 3 The presentation of a proposal for the celebration of a settlement agreement is also admitted during the preliminary investigation phase, which must also be forwarded to the General Superintendent.

§ 4 In exceptional cases, in which the Rapporteur believes that the public interest determines the analysis of a proposal for the celebration of a settlement agreement presented outside the deadline referred to in § 2, such as those involving substantial indemnification offers to those harmed by the conduct subject to the process, and provided that, additionally, a modification of the factual situation existing when the said deadline ended is demonstrated, justifying the untimely presentation, the Collegiate Board may determine, upon proposal by the Rapporteur, the processing of the request.

§ 5 The Federal Specialized Prosecutor’s Office of the CVM shall be heard regarding the legality of the proposal.” (NR)

“Art. 8 After hearing the Federal Specialized Prosecutor’s Office, the General Superintendent shall submit the settlement agreement proposal to the Settlement Agreement Committee, which must present an opinion on the opportunity and convenience of celebrating the commitment, and the adequacy of the proposal formulated by the accused, proposing to the Collegiate Board its acceptance or rejection, taking into account the criteria established in art. 9.

§ 1 The composition and functioning of the Settlement Agreement Committee shall be governed by a Ordinance of the President of the CVM.

§ 2 The Settlement Agreement Committee shall be formed by at least 5 (five) Superintendents expressly designated by the President of the CVM.

§ 3 The Settlement Agreement Committee must prepare its opinion within a maximum period of 30 (thirty) days, counted from the date of the presentation of the opinion of the Federal Specialized Prosecutor’s Office of the CVM.

§ 4 The Settlement Agreement Committee, if it deems it convenient, may, before preparing its opinion, negotiate with the proponent the conditions of the settlement agreement proposal that seem most appropriate.

§ 5 The negotiation between the Settlement Agreement Committee and the proponent must be concluded within a maximum period of 60 (sixty) days, with the proponent being entitled, upon the conclusion of the negotiations, to amend the terms of its initial proposal within the period indicated by the Committee.

§ 6 In the case of § 5, the deadline for the Committee to prepare its opinion shall be counted from the date when the negotiation is concluded or the amendment to the initial proposal is presented, as applicable.” (NR)

“Art. 9 The proposal for the celebration of a settlement agreement, accompanied by the opinion of the Settlement Agreement Committee, shall be submitted to the deliberation of the Collegiate Board, which will consider, in its examination, the opportunity and convenience of celebrating the commitment, the nature and gravity of the infractions subject to the process, the antecedents of the accused, and the effective possibility of punishment, in the concrete case.” (NR)

Art. 2 Art. 11 of CVM Resolution No. 457, of December 23, 2002, shall enter into force with the following wording:

“Art. 11. After the presentation of defenses, the records shall be forwarded to the Collegiate Board, for the drawing of a Rapporteur.

§ 1 If one or more accused parties submit a proposal for a settlement agreement, the records shall only be forwarded to the Collegiate Board after the proposal has been reviewed by the Settlement Agreement Committee referred to in art. 8 of CVM Resolution No. 390, of 2001.

§ 2 The designation of a Rapporteur shall only occur if the process is not suspended due to the celebration of a settlement agreement.” (NR)

Art. 3 The § 4 of art. 7 and the sole paragraph of art. 9 of CVM Resolution No. 390, of 2001, are hereby revoked.

Art. 4 The Settlement Agreement Committee referred to in art. 8 of CVM Resolution No. 390, of 2001, with the wording given by this Resolution, shall only issue opinions on settlement agreement proposals that are presented after the effective date of this Resolution.

Art. 5 This Resolution enters into force on the date of its publication in the Official Gazette of the Union.

Signed original by
MARCELO FERNANDEZ TRINDADE
President