CVM Resolution No. 809 of February 19, 2019

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CVM RESOLUTION NO. 809, OF FEBRUARY 19, 2019
Establishes a waiver regarding the prohibition period provided for in public offerings for the distribution of securities registered, and temporarily establishes the possibility of reserved analysis of requests for registration of public offerings for the distribution of shares and of issuers of securities admitted to trading.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION OF BRAZIL – CVM, based on art. 19, § 5º, item II, of Law No. 6.385, of December 7, 1976, and in the exercise of the competence conferred upon him by arts. 16, item XI, and 17, item XIII, of the Internal Regulations, approved by Ordinance No. 327, of July 11, 1977, of the Minister of Finance, makes public that the Collegiate Body, in a meeting held on February 19, 2019, considering that:

I – it is necessary to increase the efficiency of capital market regulation, in order to make it more competitive and to progressively reduce the compliance cost among its participants, reconciling these objectives with the CVM's legal mandate to protect investors and maximize the economic welfare resulting from full, efficient, and honest competition among its participants;

II – a comprehensive and complex process of revision of the rules governing public offerings of securities is underway at the CVM, aiming at its improvement with the adoption of the measures contained in this Resolution, which are adopted in jurisdictions of capital markets considered developed and have been understood as adequate by market participants;

III – the adoption of the measures contained in this Resolution, on an experimental basis, provides the Autarchy with the opportunity to empirically verify its benefits and the most appropriate procedures for its implementation, for purposes of definitive inclusion, via Instruction, in its regulatory framework;

IV – in the case of companies in the process of going public, the existence of safeguards to keep private information regarding their business activity, which are submitted to the CVM, confidential, may represent an incentive to file requests for registration of securities issuers, as well as those for distribution offerings, given the uncertainty regarding the success of the fundraising process;

V – for companies registered in Category A, the reserved analysis process by the CVM may reduce the potential for prolonged exposure to market fluctuations capable of adversely affecting the offering process and harming its shareholders, representing a competitive disadvantage;

VI – CVM Instruction No. 400, of December 29, 2003, in its art. 14, § 4º, prohibits the approval of the registration of a public offering for the distribution of securities during the period beginning on the sixteenth day preceding any disclosure of periodic information by the issuer and ending on the date of its effective disclosure;

VII – such prohibition may result, in some cases, in additional challenges for offerors and intermediaries by narrowing the calendar available for carrying out public distributions, harming the effectiveness of offerings in the national securities market;

VIII – the duties and responsibilities of the offeror and the lead institution in public offerings for the distribution of securities are outlined in CVM Instruction No. 400, of December 29, 2003, notably regarding the content of the Prospectus and other information presented for registration purposes, in addition to establishing procedures and responsibilities in the norms to which independent auditors are subject;

IX – the rules of CVM Instruction No. 358, of 2002, which seek to repress the improper use of insider information, do not prevent negotiations by the persons listed in its art. 13 within the scope of public offerings for distribution, provided that there is no material information pending disclosure at that time;

X – CVM Instruction No. 400, of December 29, 2003, in its art. 4º, provides that, considering the characteristics of the public offering for the distribution of securities, the CVM may, at its discretion and always observing the public interest, adequate information, and investor protection, waive the registration or some of the requirements for registration, including disclosures, deadlines, and procedures provided for in such Instruction;

DELIBERATED:

I – to determine to the Superintendency of Securities Registration and the Superintendency of Corporate Relations to establish, respectively, procedures for the reserved analysis of (i) requests for registration of public offerings for the distribution of shares issued by issuers registered in Category A or whose registration process is concurrent with the registration of a public offering, and (ii) requests for registration of open companies or processes for the analysis of updates to information of open companies related to such public offerings, in order to enable that, if so requested by the registration applicant, the analysis of these requests be conducted in a reserved manner until the date on which the first of the following situations occurs:
a) approval of any of the registrations mentioned in this item; or b) disclosure of the Market Notice and the Preliminary Prospectus;

II – in cases of reserved subsequent offering registration requests, the issuer must indicate the period during which such information must remain reserved in the event of withdrawal or denial;

III – the issuer must declare the justification for the confidentiality of the requests, including the reasons why their disclosure may represent a competitive advantage to other economic agents or put at risk the legitimate interest of the company, and, once such declaration is presented, the reserved treatment must necessarily be approved by the technical areas;

IV – in cases where the reserved analysis request is adopted, the self-regulatory entities in which the shares subject to the public offering for distribution will be admitted to trading must also adopt procedures to guarantee the confidentiality of the registration analysis requests for the public offerings;

V – self-regulatory entities that conduct prior analyses under the simplified procedure provided for in CVM Instruction No. 471, of August 8, 2008, must also adopt procedures that guarantee the confidentiality of their analysis processes, with the offeror requesting reserved analysis being exempt from the disclosure provided for in art. 7º of CVM Instruction No. 471, of 2008;

VI – if it is verified that information related to the public offering for distribution registration request under reserved analysis has escaped control, the issuer must proceed to the immediate disclosure of a relevant fact, if already registered, as well as inform the Superintendency of Securities Registration and the Superintendency of Corporate Relations so that publicity is given to the registration requests mentioned in item I, without prejudice to the evaluation of eventual responsibilities and the possible suspension of the analysis of the offering request;

VII – to authorize the Superintendency of Securities Registration to approve, during the period mentioned in art. 14, § 4º, of CVM Instruction No. 400, of 2003, the registration of public offerings for the distribution of securities; and

VIII – that this Resolution enters into force on the date of its publication.

Original signed by
MARCELO BARBOSA
President