|Interpretation of concept of qualified investor raises doubt|
The Caixa Econômica Federal savings bank ("Caixa") consulted the CVM on item I of Instruction 476/09, article 4. The instruction characterizes all investment funds as qualified investors – even funds that themselves target non-qualified investors. Given this, Caixa asked whether the instruction aimed to authorize all funds, including those considered as non-qualified investors under article 109 of Instruction 409/04, to acquire securities offered exclusively to qualified investors during restricted distribution effort offerings.
More specifically, Caixa wanted to know whether retail-oriented funds were authorized to acquire shares from Receivables Investment Funds (FIDCs) or Funds of Receivables Investment Funds (FIC FIDCs), in restricted distribution effort offerings.
The Institutional Investor Relations Oversight Office (SIN) asserted that interpreting the article as an authorization for funds targeted at non-qualified investors to acquire securities targeted exclusively at qualified investors, through restricted distribution effort offerings, would be an incorrect assessment (Memo/CVM/SIN/Nº 327/09). The regulations would be asymmetric if that interpretation were applied, given that such funds would remain prohibited from acquiring said securities in public offerings governed by Instruction 400/03, which prescribes higher minimum standards of information disclosure to investors than Instruction 476/09.
The Board voted in line with the SIN's opinion and decided that the definition of qualified investor established in article 4 of Instruction 476/09 has the specific purpose of delimiting the investors that can be approached and allowed to acquire securities during restricted distribution effort offerings, under the terms of article 3 of said Instruction. Thus, the definition set forth in article 4 only authorizes investment funds – even those targeted at non-qualified investors – to participate in restricted distribution effort offerings.
For all other purposes, including those pertaining to investment allocation rules, the definition of qualified investor established in article 109 of Instruction 409/04 prevails. Thus, investment funds that don't exclusively target qualified investors are not authorized to acquire securities targeted exclusively at qualified investors, even if said securities are distributed within restricted distribution effort offerings. Consequently, such funds are not authorized to acquire FIDC or FIC FIDC shares in restricted distribution effort offerings. (Board Meeting No. 48 of 12/15/2009; Rapporteur: Institutional Investor Relations Oversight Office)