SMV Regulations
The validity of the “Provisions for the exercise of the use of the word that shall be carried out through the electronic platform by the administered ones, in the processing of the administrative sanctioning procedures and others” (“Provisions“) is extended. Through Superintendence of the Resolution No. 130-2020-SMV/01 (published on December 31, 2020), the Superintendence of the Securities Market (“SMV“) extended until June 30, 2021 the validity of the above mentioned Provisions, adopted by Superintendent Resolution No. 056-2020-SMV/02.
The Regulation on Contributions for the Supervision Services provided by the SMV (“Regulation on Contributions”) and the RMAV are amended to extend special treatment. Through Resolution SMV No. 016-2020-SMV/01 (published on December 29, 2020), the SMV amended the Regulation on Contributions, adopted by Resolution CONASEV No. 095-2000-EF/94.10 and the RMAV, adopted by Resolution SMV No. 025-2012-SMV/01, to extend several special regimes established for contributions of the SMV, as follows:
The Regulations of the Institutional Investors’ Market (“RMII“), the Regulations of the Alternative Securities Market (“RMAV“) and the Regulations of the Primary Public Offering and Sale of Securities (“ROPPVM“) are amended. Through Superintendent Resolution No. 126-2020-SMV/01 (published on December 26, 2020), the SMV:
(1) Amended the RMII adopted by Resolution SMV No. 021-2013-SMV/01, mainly for the following:
(a) Establish that primary public offerings of foreign securities registered with the U.S. Securities and Exchange Commission – SEC, as well as those made under Regulation 144A and/or Regulation S of the U.S. Securities and Exchange Commission – SEC, issued under the U.S. Securities Act of 1933 do not require any formality or pronouncement on the part of the SMV, and that the securities in question are automatically registered in the section of the Public Registry of the Securities Market called “From the Market of Institutional Investors” upon presentation of the information referred to in paragraph b) below.
(b) Provide that the offer of the securities indicated in the previous paragraph must be made through brokers, who must previously send a communication to the SMV stating that the securities comply with the provisions of paragraphs 4.2 and 4.3 of the RMII (referring to eligible and non-eligible issuers for purposes of the RMII). Once this communication has been received, the above-mentioned registration shall be carried out automatically.
(c) Reduce from seven (7) days to five (5) days the term that the SMV has for the registration of other programs and securities under the RMII.
(d) Consider a procedure for the registration in the Securities Registry of the Stock Exchange (“RVBV“) of the national securities registered in the RPMV under the RMII, for the purpose of secondary trading in such mechanism among institutional investors. For such purpose, the Stock Exchange must publish a list of the securities registered under this modality in its website as well as in its trading system. The participating brokers shall be responsible for verifying that the counterparties in the secondary market transactions carried out with these securities have the status of institutional investors.
(e) To provide a mechanism for the registration of the securities indicated in the previous paragraph in the RVBL, at the request of the issuer, for secondary trading according to the regime established by the Stock Exchange.
(f) To allow the registration of securities in the RPMV under the RMII and their placement without the need to raise to public deed the contract or act of issue, or the documents related to specific securities in case in case of existing, without prejudice to the provisions of paragraph (g) below, which must be sufficiently disclosed in the information package leaflet.
(g) Establish that the registrable securities must be registered in the Public Registry before the placement of the securities, unless they are in the case of the Temporary Complementary Provision referred to in paragraph (h) below, in which case the consequences of noncompliance with the registration of securities are contemplated.
(h) Introduce a Temporary Complementary Provision that, exceptionally until June 30, 2021, allows the placement of the securities without the specific securities of the issue being registered in the Public Registry. In this case, this must be disclosed in the risk factors of the information package leaflet, as well as the consequences of not enforcing the registration of the securities effective, if applicable. The Issuer must clearly indicate whether it undertakes to register the securities within a period of time or whether they shall not be registered. It must be incorporated in the corresponding purchase orders that the subscribers or acquirers of the securities know and consent to the fact that the securities are not registered, the terms that the issuer would have assumed for the registration, if applicable, and the risks associated with this situation. The applicable consequences are also evaluated in the event of this commitment, if it would be assumed, but it is not fulfilled by the issuer.
(i) The law states that the provisions set forth in the two preceding paragraphs do not apply to the securities that, in accordance with the regulations on the subject, must be registered in Public Registries for their incorporation as such.
(2) It amended the RMAV, adopted by Resolution SMV No. 025-2012-SMV/01, as well as the ROPP, adopted by Resolution CONASEV No. 141-1998-EF/94.10, to include provisions similar to those indicated in sections (f), (h) and (i) of paragraph (1) above, except that the issuer must assume the commitment to register the securities referred to in said paragraph (h) within ninety (90) calendar days after the placement of the securities.
The regulation also amends paragraph (v) of numeral 2 of literal c) of Article 3 of CONASEV Resolution No. 141-98-EF/94.10 adopted by the ROPP, in order to specify that the security trusts referred to in Article 314 fourth paragraph of the Securities Market Law, constituted as a specific security allowed for the issuance of bonds, under the provisions of Article 305, paragraph 1 of the General Law of Corporations, Law No. 26887. They must guarantee the payment of securities issued by third parties in an exceptional manner and secondary to the payment of securities issued by the corresponding Securitization Company.
SMV Drafts
Dissemination of the draft regulation that repeals paragraph b) of Article 9 of the Regulations on the Preparation and Presentation of Financial Statements and Annual Reports by the entities supervised by the Superintendence of the Securities Market, adopted by Resolution SMV No. 016-2015-SMV/01, was authorized. Through Resolution SMV No. 015-2020-SMV/01 (published on December 30, 2020), the SMV published the draft in mention for public comments.
Dissemination of the Draft for the amendment of the Regulations for Public Offer of Acquisition and Purchase of Securities by Exclusion and of the Regulations on Transactions in Exchange Wheel of the Lima Stock Exchange was authorized. Through Resolution SMV No. 014-2020-SMV/01 (published on December 26, 2020), the SMV published the draft in mention for public comments.
Dissemination of the draft regulation for the participation of the custodian in shareholders’ meetings or bondholders’ meetings was authorized in accordance with Article 51-B of the Securities Market Act. Through Resolution SMV No. 013-2020-SMV/01 (published on December 28, 2020), the SMV published the draft in mention for public comments.
