The Superintendence of the Stock Market (“SMV”) approves the modification of the Rules for the Public Offering of Acquisition and Purchase of Securities by Exclusion, approved by Resolution CONASEV N° 009-2006-EF/94.10 (“ROPA”), the Rules for the selection process of the valuation entity responsible for determining the minimum price to be taken into account in the public offering and public purchase offer processes, approved by Management Resolution N° 025-2006-EF/94. 45 (“Bases”) and the model of Bases for the non-attendance selection process of the valuation entity responsible for determining the minimum price to be taken into account in the delisting and tender offer processes, approved by Resolution SMV N° 009-2020-SMV/01 (“Model of Bases”). By Resolution SMV N° 011-2023-SMV/01, published in the Official Gazette El Peruano on October 19, 2023, the SMV approved the amendment of the ROPA, the Bases and the Model of Bases, in order to recognize, in the case of a subsequent tender offer (“Tender Offer”), that the obligor may offer securities as consideration, provided that it has also offered and paid such consideration in the previous transaction or transactions that generated the obligation to carry out the subsequent Tender Offer. The possibility of delivering securities as consideration in a PTB was already provided for in the case of a previous PTB.
Among the main amendments to the ROPA are the following:
– It is established that in the subsequent PTB, the offer must be made for a price or, as the case may be, exchange ratio, not less than that determined by a valuation entity, being able to be paid in cash and/or securities. – The cases of impediment applicable to the valuation entities for the case of a subsequent PTB made with consideration in securities are extended. – The duty of the valuation companies to determine the exchange ratio in case the subsequent takeover bid foresees consideration in securities is regulated. – It is established that the person obliged to make the offer is responsible for delivering the information required by the valuation company in order to carry out the valuation process. – The consideration to be received in the event of a subsequent PTB derived from transactions involving the delivery of securities is determined, in the event that it is not possible to appoint a valuation entity. – It establishes the duty of the valuation entities to also value the issuer of the securities offered in exchange in the event of a subsequent PTB that provides for consideration in securities.
On the other hand, the main modifications to the Bases and the Model Bases are the following:
– Adjustments are included to reflect the modifications to the ROPA. – The minimum content of the valuation report is expanded to include information related to the determination of the exchange ratio in case securities are offered as consideration in a subsequent tender offer. – The selection process includes the experience that the valuation companies may have with respect to the issuer of the securities offered as consideration.
The SBS approves amendments to the Financial System Market Conduct Management Regulation, approved by SBS Resolution N° 3274-2017 (“GCM Regulation”), the Financial System Commissions and Expenses Regulation, approved by SBS Resolution N° 3748-2021 (“C and G Regulation”), the Credit and Debit Cards Regulation, approved by SBS Resolution N° 6523-2013 (“Regulation TC and TD”), the Regulation for Information Security Management and Cybersecurity, approved by SBS Resolution N° 504-2021 (“Regulation GSI and Cybersecurity Regulation”), and the Regulation of Claims and Requirements approved by SBS Resolution N° 4036-2022 (“Regulation R and R”). By means of SBS Resolution N°3240-2023, published in the Official Gazette El Peruano on October 3, 2023, the SBS approved the amendment of the aforementioned regulations, mainly in the aspects indicated below.
a) The GCM Regulation is amended to:
To consider within the essential and/or inherent services, the payment of credit obligations through its own channels made available by each company subject to the application of said regulation (companies included in paragraphs A and B of Article 16 of the General Law, Banco de la Nación and Banco Agropecuario), except for the exceptions set forth in the regulation. – To provide that additional clauses to the contracted policies or insurance products, which provide coverage other than that of the credit loss insurance or insurance oriented to the protection of the collateral, must be optional and must be contracted independently. – Specify what should be included in the credit loss insurance when it is offered as a condition for contracting a credit product. – Modify the definition of “Interest rate that depends on a variable factor” for the purposes of this regulation. – Establish the duty of companies to make available, for prepayment and installment advance transactions, at least the same channels used for the payment of installments or credit card obligations.
b) Regulations C and G are amended to eliminate the fee for “Judicial and/or Administrative Withholding” from the category “Services provided at the request of the client” of item e), and to modify the fee for “Over-the-counter operations” from the category “Use of channels” of item b) related to mortgage and consumer loans of Annex No. 1 of said regulations.
c) The TC and TD Regulation is amended with respect to “micropayments” (transactions for small amounts, which do not require strong user authentication), to provide that they must have a maximum limit, and to regulate the liability of the issuing company and users for the execution of such transactions.
d) The GSI and Cybersecurity Regulation is amended with respect to the enhanced authentication exemption regime for transactions through digital channels.
e) Regulation R and R is amended mainly regarding the definition of the concept of “claim”, to provide for the duty of the companies subject to such regulation (companies indicated in subparagraphs A, B and D of Article 16, and in Article 17 of the General Law, Banco de la Nación, Banco Agropecuario, Derramas y Cajas de Beneficios, Asociaciones de Fondos Regionales o Provinciales contra Accidentes de Tránsito (AFOCAT), Administradoras Privadas de Fondos de Pensiones (AFP)) to keep a record of all complaints filed by users.
The SBS approves modification of the Regulation of Infractions and Sanctions of the Superintendency of Banking, Insurance and Private Pension Fund Administrators, approved by Resolution SBS N° 2755-2018. By means of SBS Resolution No. 3229-2023, published in the Official Gazette El Peruano on October 2, 2023, the SBS approved the modification of Annexes 3 (Specific Infractions of the Insurance System) and 4 (Specific Infractions of the Private Pension Fund Management System) to include new conducts typified as infractions and eliminate other conducts typified as such.
