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Capital Markets Newsletter – June 2020

CAPITAL MARKETS NEWSLETTER

PROVISIONS OF GENERAL INTEREST

SMV Regulations

A new deadline is adopted for the submission of the Statement – Self-Assessment and Payment of the Annual Contribution for the taxable year 2019 (Format AP-1) and other provisions on payment of SMV contributions are issued. Due to the approval of a new deadline for the submission to the Superintendence of the Securities Market (“SMV”) of the annual audited individual financial information for the taxable year 2019, by Superintendent Resolution No. 053-2020-SMV/02 (published on June 20, 2020), it is established that:

(i) the deadline for the submission of the Statement – Self-Assessment and Payment of the Annual Contribution for the taxable year 2019 (Format AP-1), by the entities to which the SMV grants operating authorization, shall be on July 31, 2020 (Article 1 of Superintendent Resolution No. 038-2020-SMV/02, which had established June 30, 2020 as said date, is hereby amended). In this sense, for the purposes of filing the Statement – Self-Assessment and Payment of the Annual Contribution for the taxable year 2019, when in Format AP-1 it is indicated as “April 30”, it must be understood as “July 31 2020”;

(ii) regarding the Annual Contribution for the taxable year 2019, the term in which the SMV informs the companies of the excess or default amounts they have paid out of their contribution (referred to in the second paragraph of article 10 of the Regulation on Contributions for Supervision Services provided by the SMV, adopted by CONASEV Resolution No. 095-2000-EF/94.10), shall now be up to 30 working days, and shall be counted from the end of the term indicated in the numeral (i) above;

(iii) for the calculation of the monthly payment on account of June of this year of the taxpayers referred to in numeral (i) above, if the audited annual financial information for the year 2019 submitted to the SMV is not available at the end of that month, the audited annual financial information for the year 2018 submitted to the SMV shall be used.

The “rules for the calls and celebrations of trustees ‘assemblies, shareholders’ assemblies, committees and other collegiate bodies of the companies to which the SMV grants operating authorization” are adopted and new provisions on corporate governance and physical acts for the entities to which the SMV grants organization and operating authorization. Through Superintendent Resolution No. 052-2020-SMV/02 (published on June 19, 2020), it is established that the legal persons to whom the SMV has granted authorization for organization and operation and the autonomous assets under its administration, with the exception of the Collective Funds Management Companies (“Entities”) may convene and hold, in a non assembly manner, assemblies and committees, such as:

(i) assemblies of holders of mutual funds shares;
(ii) assemblies of holders of investment fund shares and securities issued in securitization processes, which have been the subject of a public offering; and,
(iii) the different committees provided for in the regulations governing the Entities, such as committees of mutual fund management companies, investment funds, securitization companies and risk rating companies, as well as the different committees of the autonomous estates that they manage.

These rules establish, among other things, the manner in which said calls shall be made, their dissemination and the manner in which non-face-to-face assemblies or committees shall be held, as well as the aspects related to the minutes and the deadlines for the mandatory preservation of the relevant information.

Finally, the aforementioned resolution replaces Title IV of the “Common rules for entities that require authorization for the organization and operation of the SMV”, adopted by Resolution SMV No. 039-2016-SMV/ 01, introducing new Final Supplementary Provisions and Transitory Supplementary Provisions, according to which:

(i) new deadlines are established for the implementation of a corporate website (August 1, 2020) and the approval of a Board of Directors Regulation (September 30, 2020).
(ii) during the State of Emergency and as long as there are restrictions on freedom of transit in accordance with the provisions issued by the Executive Branch:
(a) the sending of physical notifications to investors shall not be required;
(b) the minutes and other documents that are prepared or must be kept in physical form may be signed only by the chair of the meeting or by the person acting in his stead. After the restrictions have been lifted, the Entities must collect the missing signatures within fifteen (15) working days; and,
(c) the obligation to publish in a journal the notice of call to a meeting of shareholders or trustees that may be provided for in the provisions applicable to the Entities shall not be enforceable.

For more information, see our Alert at the following link: [___] https://www.linkedin.com/feed/update/urn:li:activity:6681310822339235841/

SMV requires submission of audited annual financial information and annual report for the financial year 2019 that the issuers have in their possession and that have not been disclosed to the market.
Through Circular No. 146-2020-SMV/11.1, dated June 11, 2020, the SMV required issuers with securities registered in the Public Registry of the Stock Market (“RPMV”) to have in their possession the above documents, to submit them as a material fact or through the MVNET, explaining the reasons why such a submission was not made previously. In addition, issuers who do not have the above information must explain the reasons for said situation and the state of preparation of the information.

For more information, see our Alert at the following link: [___] https://www.linkedin.com/feed/update/urn:li:activity:6677393740287524864/

SMV announces actions to supervise compliance with International Financial Reporting Standards (IFRS) and recommendations contained in Circular No. 140-2020- SMV/11.1 on the preparation of financial information considering the effects of Covid -19.
Through Circular No. 145-2020-SMV/11.1, dated June 8, 2020, the SMV informs issuers with securities registered in the RPMV that it shall initiate supervisory actions with respect to recommendations on preparing financial information in accordance with the IFRS, considering the effects of Covid -19, which was approved by Circular No. 140-2020- SMV/11.1.
Among other provisions, the Circular that we comment announces that one of the points that shall be consulted shall refer to the measures that the company’s governing bodies have adopted to ensure regulatory compliance.

The “Rules for calls and celebrations of general shareholders’ meetings and assemblies of non-face-to-face bondholders referred to in article 5 of Emergency Decree No. 056-2020” are adopted. Through Superintendent Resolution No. 050-2020-SMV/02 (published on June 4, 2020), it was adopted that issuers with securities registered in the RPMV (Issuer) and the entities to which the SMV has granted organization and operation authorization (Entity), may make calls to general meetings of shareholders and to carry out said meetings, in a non-face-to-face manner, even when their respective statutes do not contemplate such possibility. The referred resolution establishes, among other things, the way in which the calls shall be made and their dissemination, the manner in which the general meetings of shareholders shall be held in a non-face-to-face manner, as well as the aspects related to the minutes and the deadlines for the mandatory preservation of the relevant information.

On the other hand, the aforementioned resolution also allows the holding in a non-face- to-face manner of (i) general and special assemblies of bondholders issued by public offering, including assemblies of trustees of debt instruments issued by public offering by securitization companies and (ii) general and special assemblies of securities issued by private offering under programs registered in the RPMV; even when the respective contract or act of issuance does not provide this possibility, establishing the rules applicable to these cases.

Finally, the resolution under comment includes a limited supervision regime by the SMV, in which it is considered a serious infringement to fail to submit the information established by that rule, or to submit it late or incomplete.

For more information, see our Alert at the following link.

This communiqué has been prepared by the banking and financial area of Rodrigo, Elías & Medrano Abogados.