ALERT – CAPITAL MARKETS
Superintendence of the Securities Market (“SMV”) publishes draft regulations for the virtual convening and holding of assemblies of trustees, assemblies of attendees and committees of companies to which the SMV grants authorization to operate and of autonomous assets that they manage (“Project”).
The SMV has submitted the Project for the market’s consideration, in order to make possible the convening and holding, in a non-face-to-face manner, the following: (i) assemblies of holders of shares in mutual funds; (ii) assemblies of holders of investment fund shares and securities issued in securitization processes, which have been publicly offered; and, (iii) the different committees provided for in the regulations governing the entities to which it grants operating authorization (“Entities”), such as mutual fund management companies, investment funds, securitization companies and rating companies risk, as well as the autonomous assets that they must manage.
The Project includes provisions related to the convening of assemblies or committees, their holding, the means to record them and the agreements adopted in them, the responsibilities that correspond to those who call and carry out said non-face-to-face meetings, as well as the obligation to retain the respective documentation or information.
Among the highlights of the Project are the following:
- The application of the standards approved by the Project (“Standards”) is voluntary, but in the event that the Entities decide to use them, they must comply with all the provisions contained therein.
- In the case of non-face-to-face meetings of securitization trusts placed by public offering, the Rules shall apply in preference to the provisions of article 5 of the Emergency Decree No. 056-2020 and the regulations derived from said article to be issued by the SMV.
- Entities may call and hold assemblies and committees in a non-face-to-face manner through the use of technological or telematic means that allow investors or their representatives and members of the respective committee to participate and exercise their vote, as long as the contracts, prospectuses, manuals or other documents that regulate them do not expressly prohibit the face-to-face modality.
- These technological or telematic means must allow at least the simultaneous transmission of sound, image and the participation of attendees. The chosen system or mechanism must allow the Entity to identify investors.
- For the purposes of convening non-face-to-face meetings, the Entities must observe the terms and other provisions established in the contracts, prospectuses, manuals or other documents that regulate them, as well as the provisions of the applicable special regulations.
- The convening to assemblies is made through a notice with the minimum content and formalities provided in the Standards. Said notice must be sent by the Entities through the MVNet system, by the route of the important events. The aforementioned referral exempts the Entities from the obligation to publish the call in journals or other means provided for in the respective regulations. However, this does not exempt them from disseminating the notice of convening through the additional mechanisms provided in their respective contracts, prospectuses, manuals or other documents that regulate them.
- At the same time, an “Informative Document” must be prepared, containing the procedure for holding the assemblies, which must comply with the parameters established in the Rules, and be sent as an important event together with the notice of convening and the information and documentation related to the topics to be covered.
- The above information is disseminated in a special section of the SMV Portal (smv.gob.pe) called “Non-face-to-face Meetings or Assemblies”.
- The Project highlights the possibility of implementing the use of early voting in the shareholders ‘meetings and trustees’ meetings as long as the contracts, prospectuses, manuals or other documents that regulate them do not expressly prohibit it.
- For its part, the convening to the committees are made in accordance with the internal and regulatory provisions that are applicable to them, and must expressly indicate that the meeting shall be held in a non-face-to-face manner, as well as the technological or telematic means to be used.
- Powers of representation may be transferred by technological or telematic means.
- The Project contemplates the possibility that the Entities digitize or elaborate in electronic or digital media the minutes and all the documentation that is pertinent, corresponding to the respective bodies to determine the means of electronic or digital signature of the documentation that accredits the participation and agreement of the attendees. If the Entities choose to use electronic signatures to sign the minutes, the latter must comply with the requirements set forth in the Standards.
- The project establishes that the Entities must keep the documentation and information related to the non-face-to-face assemblies and committees for a period of ten (10) years.
- Likewise, the Project refers in particular to the risk classification committees of the risk classification companies, indicating that they may apply the procedures to meet in a non-face-to-face manner, as provided in their internal manuals.
This communication has been prepared by the banking and financial area of Rodrigo, Elías & Medrano Abogados.
