On February 22, 2021, the Financial Market Commission (hereinafter, the “CMF”) published General Rule No. 452 (hereinafter, the “NCG 452”), which exempts certain public offerings of securities from the obligation to register the issuer or security and amends General Rule No. 336 of 2012 (hereinafter, the “NCG 336”). It also repeals General Rule No. 345 and paragraphs 1 and 2 of Circular No. 125.
The instructions established by virtue of NCG 452 will become effective as of the same date of the issuance of the rule.
1. Excepted public offerings
i. Those whose securities may only be acquired by qualified investors.
ii. Those made in national stock exchanges, provided that the total accumulated amount to be raised by the issuer or offeror in the 12 months following the first offer made in the stock exchange does not exceed the equivalent of 100,000 Unidades de Fomento, and that the offeror or the issuer complies with the information requirements that the respective stock exchange has established for the protection of investors in order to make the corresponding offer.
iii. Those that establish as a requirement to improve each operation, that the investor acquires at least 2% of the capital stock of the issuer of the securities.
iv. Those whose purpose is to compensate the employees of the issuer of the securities, or of its parent company, subsidiaries or affiliates, regardless of whether the offer relates to the shares of a collective investment vehicle whose main investment are instruments representing the capital of the former.
1. Those that deal with securities that confer to their purchasers the right to membership, use or enjoyment of the facilities or infrastructure of educational, sports or recreational establishments.
2. Amendments to NCG 336
The following amendments were made to NCG 336:
i. A new paragraph c) is added to number iii) of section I, indicating that public offerings of securities shall not constitute public offerings of securities that are directed to a maximum of 50 investors that do not have the status of Qualified Investor, as long as the copulative requirements of section I indicated in numbers i) and ii) are also met.
ii. The final paragraph of section I is modified in relation to the fact that securities offerings that deal with instruments whose unit value amounts to at least 3,000 Unidades de Fomento shall not be required to comply with the alternative requirements indicated in number iii) of section I of NCG 336.
iii. If the communication or material that is delivered to potential investors is in a language other than Spanish or English, the information must also be included in one of these two languages.
iv. Section IV, paragraph (a) is replaced, indicating that in order to verify the identity and quality of Qualified Investor of the persons indicated in letters (a) and (b) of paragraph (iii) of Section I of NCG 336, a declaration may be obtained from the person acquiring the securities offered, indicating what type of investor he/she is, that is, qualified from 1) to 6) of section II of General Standard No. 216 of 2008, 7) or 8) of the same standard, or that he/she is not a Qualified Investor, and the fact that he/she is aware that the securities to be acquired are not registered in the registers kept by the CMF.
3. Obligations to inform the public
– Those who make the offers indicated in number 1. above, must indicate, in the verbal, physical or electronic communication used to offer the securities, that the offer deals with securities not registered in the registers kept by the CMF and that, therefore, the offer may not be made to the public in Chile:
– No public offering can be made in Chile of such securities; and.
In the event that the issuer of the securities is not registered, such issuer will not be subject to the supervision of the CMF, nor will it be obliged to comply with the continuous information obligations required of registered issuers.
4. Information obligations to the CMF
The offerors of the respective securities must send to the CMF, 5 business days prior to the day on which the offer is intended to be made, the following information:
i. Identification of the Offeror.
ii. Identification of the Issuer of the Security.
iii. Identification of the entity for which the workers perform functions (if applicable).
iv. Type of offer to be made.
v. Total amount intended to be placed with the recipients of the offer, expressed in Chilean pesos as of the day prior to the day the information is sent.
vi. Percentage of the issuer’s capital (if applicable).
Additionally, the offeror must attach to this information a declaration of truthfulness of the same and of the fact that he/she will comply with the instructions given in these regulations.