ALERT – CAPITAL MARKETS
The Superintendency of the Securities Market (SMV) authorizes the dissemination of the Draft Amendment to the Regulations for Public Tender Offers and Purchase of Securities by Exclusion, approved by CONASEV Resolution No. 009-2006-EF/94.10 (“Tender Offer and Takeover Bid Regulations”), and to the Regulations of the Public Registry of the Securities Market, approved by CONASEV Resolution No. 079-97-EF/94.10 (“RPMV Regulations”) (“Draft”)
Through SMV Resolution No. 008-2025-SMV/01, published in the Official Gazette El Peruano on May 30, the SMV authorized the dissemination of the Draft Amendment, which proposes to amend the aforementioned regulations.
Regarding the Tender Offer and Takeover Bid Regulations, the Draft primarily includes the following proposals:
- Tender Offer Regulation
- Obligation to Notify Exceptions: Establish the obligation of anyone who must make a public offer for the acquisition of securities («Tender Offer«) to notify the target company and the SMV that they are required to make a tender offer. This obligation must be fulfilled within the following business day.
- Modification of the Tender Offer Procedure: Modify the procedure for launching a tender offer, replacing the procedure for communicating the tender offer to the SMV and the respective stock exchange, the time from which the tender offer period begins, with a procedure for registering the prospectus and other tender offer documents, which must be completed before the tender offer is made. In this case, the tender offer becomes effective the day after notification of the resolution ordering registration.
In the new procedure, which would apply positive administrative silence, the SMV has 20 business days to submit comments, in contrast to the 5 business day period it currently has to submit observations to the tender offer.
- New deadline for subsequent tender offers: In subsequent tender offers, the deadline for submitting the application mentioned in the previous section would be three months (currently six) from the date the obligation arose or five days from the date the appraiser communicated its valuation report.
The person required to make a tender offer may request an extension of the maximum deadline for initiating the aforementioned registration process.
- New person responsible for appointing the appraiser: In subsequent tender offers, the SMV would no longer appoint the entity responsible for the appraisal of the securities subject to the tender offer. Instead, the person required to make the tender offer would appoint the entity responsible for the appraisal from among audit firms, banks, investment banks, brokerage firms, or «consulting firms specialized in business valuation activities, whose experience allows them to undertake the proposed process.» The contract must be entered into after the obligation to make a tender offer is generated.
Facilities for disseminating the notice: The tender offer notice will no longer need to be published in the Official Gazette El Peruano and in another newspaper with wider circulation. It will be replaced by publication by the stock exchange, in its daily bulletin, and by the target company, as a significant event.
- Board Report: The rules regarding the preparation of the report of the target company’s board of directors are amended to require it to include its opinion on the reasonableness of the price and indicate the documents supporting that opinion, as well as the opinion of each director who has objections to the price or terms of the t tender offer. In addition, the type of disclosures that must be made regarding potential relationships with the party obliged to make the tender offer or situations of conflict of interest are amended.
- Takeover Bid Regulation
- New Takeover Bid Procedure: The current procedures for conducting takeover bids are replaced, establishing a procedure for registering the takeover bids notice and documents prior to the formulation of the takeover bids.
The SMV has 20 business days to submit observations instead of five, with positive administrative silence still in effect.
- OPC without valuation: When the takeover bid price results from market quotes, because the security meets the liquidity conditions required by the regulations, the obligated party must initiate the registration procedure within five days of the exclusion of the securities.
- Change in the valuation agency designation procedure: When the price of the takeover bid must be determined by a valuation agency, the obligated party must first request the SMV to designate the valuation agency within 10 days of the securities’ delisting.
However, this procedure is different from the current one, as the SMV must have three days from the submission of the request to designate the valuation agency, and must only verify that the requirements set forth in the regulation are met.
In such cases, the registration procedure must be initiated within three months of the designation of the valuation agency, or within five days of receiving the valuation report.
- New method of publication of the notice: The takeover bid becomes effective the day after the notice is published once (not three times, as established by the current regulation) and is published in the Official Gazette El Peruano, or in another newspaper with a wider circulation in the issuer’s place of residence (not both, as established by the current regulation). The notice must also be published by the exchange and disclosed as a significant event by the issuer.
3. Valuation Procedure and Valuation Entity
- Acquisition Price: In the case of a tender offer the party obligated to make the tender offer notifies the valuation entity of the price paid for the acquisition. The minimum price will be the higher of the price determined by the valuation entity and the price paid by the party obligated to the tender offer.
- Changes to the Valuation Procedure: The valuation entity determines which valuation criteria contained in the regulations are not applicable and selects the highest of those applicable.
- Subsidiary Price Determination Mechanism in Takeover Bids: In Takeover Bids, a subsidiary criterion is established for determining the price if a valuation entity cannot be designated.
- Impediments to valuation entities: On the other hand, the impediments for entities wishing to act as valuation entities are made stricter or more precise.
Likewise, intermediary agents who have valued the securities subject to the offering may not assume the role of valuation entity.
4. Public Registry of the Securities Market
- New section in RPMV: A section has been created for the registration of tender offers and takeover bids.
For further information, please contact Nydia Guevara (nguevara@estudiorodrigo.com) and/or Paul Castritius (pcastritius@estudiorodrigo.com).
