Resumen corto:
Rule 144A permite ventas privadas de valores a instituciones calificadas con inversión mínima de $100 millones, excluyendo transacciones para evadir registros y sin afectar exenciones existentes.
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Rule 144A – Private Resales of Securities to Institutions
Preliminary Notes
1.
This section relates solely to the application of section 5 of the Act and not to antifraud or other provisions of the federal securities laws.
Attempted compliance with this section does not act as an exclusive election; any seller hereunder may also claim the availability of any other applicable exemption from the registration requirements of the Act.
In view of the objective of this section and the policies underlying the Act, this section is not available with respect to any transaction or series of transactions that, although in technical compliance with this section, is part of a plan or scheme to evade the registration provisions of the Act. In such cases, registration under the Act is required.
Nothing in this section obviates the need for any issuer or any other person to comply with the securities registration or broker-dealer registration requirements of the Securities Exchange Act of 1934 (the Exchange Act), whenever such requirements are applicable.
Nothing in this section obviates the need for any person to comply with any applicable state law relating to the offer or sale of securities.
Securities acquired in a transaction made pursuant to the provisions of this section are deemed to be restricted securities within the meaning of Rule 144(a)(3).
The fact that purchasers of securities from the issuer thereof may purchase such securities with a view to reselling such securities pursuant to this section will not affect the availability to such issuer of an exemption under section 4(a)(2) of the Act, or Regulation D under the Act, from the registration requirements of the Act.
a. Definitions.
1. For purposes of this section, qualified institutional buyer shall mean:
i. Anyof the following entities, acting for its own account or the accounts of other qualified institutional buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with the entity:
A. Any Insurance company as defined in section 2(a)(13) of the Act;
Note: A purchase by an insurance company for one or more of its separate accounts, as defined by section 2(a)(37) of the Investment Company Act of 1940 (the Investment Company Act), which are neither registered under section 8 of the Investment Company Act nor required to be so registered, shall be deemed to be a purchase for the account of such insurance company.
B. Any Investment company registered under the Investment Company Act or any business development company as defined in section
2(a)(48) of that Act;
CL. Any Small Business Investment Company icensed by the
1,5. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958;
D. Any plan established and maintained by a state, lts political subdivisions, or any agency or instrumentallty of a state or its political subdivisions, for the benefit of its employees;
E. Any employee benefit plan slthln the meaning of title | of the Employee Retirement Income Security Act of 1974;
E. Any trust fund whose trustee is a bank or trust company ant whose participants are exclusively plans of Ue types identified in paragraph (2)(1)(1)(09) or (E) of this section, Except trust funds that include as participants individual retirement accounts or 4,A, 10 plans,
G. Any business development company as defined la section
202(41(22) of the Investment Advisers Act of 1940;
A, Arm organization described in section 501(c) (3) of the internal Revenue Code, corporation (other than a bank as defined In section 3(4)(2) of the Actor a savings and loan association or other institution referenced in section 3J(aJ(5A) oF the Act or a foreign bank ar savings and loan association or equivalent institution), partnership, or Massachusetts or similar business trust; and
1. Any investment sdviser registered under the Investment Advisers Act,
Any dealer registered pursuant to section 15 of the Exchange Act, acting for Its owen account er the accounts of other quallfled Institutional buyers, that in the aggregate owens and invests on a discretienary basis at least 410 million of securities of issuers that are not affillated veth the dealer, Provided, That securjtles constituting the whole ar a part of an unsold aliotment to or subscription by a ósaler as a participant in a public offering shall not be deemeo to be owned by such dealer;
Any dealer registered pursuant to section 15 of the Exchange Act acting in a riskless principal transaction on behalf of a quallified institutional bisyer;
Note: A registered dealer may act as agent, on a nonediscretionary basis, ln a transaction with a qualifed institutional buyer velthout itself having to be a qualified institutional buyer.
Any investment company registered under the Investment Company Acl, acting for its. own account or for the accounts of other qualified institutional buyers, that is part of a Family of investment companies which owen in the aggregate al least $100 million ón securitles af issuers, other than Issuers that are affillabed with the Investment company or are part of such family of investment campanios.
Family of investment companies means any bwo or more investment companies registered under the Investment Company Áct, except for a unit investment trust whose assets consist solely of shares of one or more reglstered investment compares, that have the same
2.
investment adviser (or, ln the case of unit investment trusts, the same depositor), Provided That, for purposes of this section:
A. Exch series of a series company (es defined in Rule 18f-2 under the investment Company Áct ) shall be deemed to be á separate investment company; and
B. investment companies shall be deemed to have the same adviser (or depositor) if their advisers [or depositors) are majority-owned subsidlaries of Ue same parent, or ifone investment company’s adviser [or depositor) ls a majority- owned subsidiary of the other Investment company’s adviser (or depositor);
Y, Any entity, all of the equity owners af which are qualifiod institutional buyers, acting for ¡ts own pocount or the accounts of other qualificd institutional buyers; and vi, Ary bank as defined in section 3(a)(2) of the Act, any savings and loan association or other institution as referenced in section I(aJ5IA) of the Act, or any forelgn bank or savings and loan association or equivalent institution, acting for lts own secount or the arcounts of other qualified instituUional buyers, that ón the aggregate owns and invests on a discretionary basis at least $100 million in securities af issuers that are not affiliated with it and that has an sudited net worth of at least $25 million as demonstrated In its latest anpual Ánancial staternents, as of a date not more than 16 months preceding the date of sale under the Rule in the case of a
1,5. bank or savings and loan association, and not more Man 13 menths preceding such date of sale for a foreign bank or savings and loón association or equivalent Institution.
Tn determining the aggregate amount of securities owned and invested on a discretionery basis by an entity, the following instruments and interests shall be exduded: bank deposit notes and certificates of deposit; loan participations; repurchase agreements; securities owned but subject to a repurchase agreement; and currency, interest raba and commodity svaps.
The sggregate value of securities owned and invested an a discretionary basis by an entity shall be the cost of such securitias, except where the entity reports lts securities holdings in its financial statements on the basis of their market value, añd ño current information w(th respect to the cost of those securities has been published, Ta the latber event, he securities may be valaed at market for purposes of this section, in determining Ue aggregate amount of securitles dwned by an entity and invested on a discretionary basis, securities owned by subsidiaries of the entity that are consolidated with the entity in its financial staberments prepared in socordance weth generally accepted accounting principles may be included ¡F the investraents of such subsidiaries are managed under the direction of the entity, except that, unless the entity is a reporting company under section 13 0r 156) of the Exchange Act, securities owned by such subsidiaries may not be Inoluded if Uhe entity itself is a majority-owened subsidiary that would be included in Uhe consolidated financial statements of another enterprise.
For purposes of this section, riskless principal transaction means a transaction in whicó A dealer buys a security from any person and makes a simultaneous offsetting sale of such security to a qualified institutional buyer, including another dealer acting as riskless principal for a qualified institutional buyer.
6. For purposes of this section, effective conversion premium means the amount, expressed as a percentage of the securitys conversion value, by which the price at issuance of a convertible security exceeds its conversion value.
7. For purposes of this section, effective exercise premium means the amount, expressed as a percentage of the warrant’s exercise value, by which the sum of the price at issuance and the exercise price of a warrant exceeds its exercise value.
Sales by persons other than issuers or dealers. Any person, other than the issuer or a dealer, who offers or sells securities in compliance with the conditions set forth in paragraph (d) of this section shall be deemed not to be engaged in a distribution of such securities and therefore not to be an underwriter of such securities within the meaning of sections 2(a)(11) and 4(a)(1) of the Act.
Sales by Dealers. Any dealer who offers or sells securities in compliance with the conditions set forth in paragraph (d) of this section shall be deemed not to be a participant in a distribution of such securities within the meaning of section 4(a)(3)(C) of the Act and not to be an underwriter of such securities within the meaning of section 2(a)(11) of the Act, and such securities shall be deemed not to have been offered to the public within the meaning of section 4(a)J(3)(A) of the Act.
Conditions to be met. To qualify for exemption under this section, an offer or sale must meet the following conditions:
1. The securities are offered or sold only to a qualified institutional buyer or to an offeree or purchaser that the seller and any person acting on behalf of the seller reasonably believe is a qualified institutional buyer. In determining whether a prospective purchaser is a qualified institutional buyer, the seller and any person acting on its behalf shall be entitled to rely upon the following non- exclusive methods of establishing the prospective purchaser’s ownership and discretionary investments of securities:
L The prospective purchaser’s most recent publicly available financial statements, Provided That such statements present the information as of a date within 16 months preceding the date of sale of securities under this section in the case of a U.S. purchaser and within 18 months preceding such date of sale for a foreign purchaser;
IL The most recent publicly available information appearing in documents filed by the prospective purchaser with the Commission or another United States federal, state, or local governmental agency or self-regulatory organization, or with a foreign governmental agency or self-regulatory organization, Provided That any such information is as of a date within 16 months preceding the date of sale of securities under this section in the case of a
U.S. purchaser and within 18 months preceding such date of sale for a foreign purchaser;
TH. The most recent publicly available information appearing in a recognized securities manual, Provided That such information is as of a date within 16 months preceding the date of sale of securities under this section Ín the case of a U.S. purchaser and within 18 months preceding such date of sale for a foreign purchaser; or
A certification by the chief financial officer, a person fulñillerg an equivalent function, or other executive officer of the purchaser, specifying the amount of securities owned and Invested on a Biseretionary basis by e purchaser as of a specific date on or since the dose of the purchaser’s most recent fiscal year, or, in the case of a purchaser that is a member of a family of investment companies, a certification by an executive officer of the investment adviser specifying the amount of securities owned by the Farnily of Investment companies as of a specific date on or since the close of tha purchaser’s most recent fiscal year;
The seller and any person acting on [ts behalf takes reasonable steps to ensure that the purchaser is aware that the seller may rely on the exemption from the provisions of section 5 of the Act provided by this Section.
The securites offered or sold: d
Were not, when issued, of the same class as securitles listed on a national securities exchange registered under section 6 of the Exchange Act or quoted In a U,S. automated inter-dealer quotatlon system; Provided, That securities that are convertible or exchangeable into securitles so listed or quoted at the time of issuance and that had an effective conversión premium of less than 10 percent, shall be treated as securities of the class into which they are convertible or exchangeable; and that warrants that may be exercised for secunties so listed or quoted at the time of issuance, for a period of lesa nán 3 years from the date of issuance, or that had an effective exercise premium of less than 10 percent, shall be treated as securities of the class to be issued upon exercise; and Provided further, That the Commission may from time to time, laking ínto account then-existing market practices, designate additional securitles and classes of secrities hal welil mol be deemed of the same class as securities listed on a national securities exchange or quoted In a U.S. automated inter-dealer quotation system; and
Are not securities of an open-end investment compary, unit Investment trust or face=amount certificate company Lhat is or is required to be registered under section 8 of the Investment Company Act; and
In the case of securíties of an issuer Chat is meither subject to section 13 or 25(d) of the Exchange Act, nor exempt from reporbing pursuant to Hule 1293-2(b) under the Exchange Act, nor a foreign govermment as defined in Rule 405 ellgltle to register securities under Schedule E of the Act, the holder and a prospective purchaser designated by the holder have the right to obtain from the issuer, upon request of the holder, and the prospective purchaser has received from the issuer, the seller, or a person écting an either of their behalf, at or prior to the time of sale, upon such prospective purchasers request to the holder or the issuer, the following information (which shall be reasonably current In relation to the date of resale under this section): a very brief statement of the e, nature of the business of the issuer and the products and services it offers; and the issuer’s most recent balance sheat and profit and loss and retained earnings statements, and similar Financial statements for such part of the two preceding fiscal years as the issuer has been In operation (the financial statements should be audited to the extent reasonably avallable).
de The roguirenent that the information be sessonatiy current wáll be presumed to be satisfied il:
A. The balance sheet ls as ol a date less than 16 months before the date of regale, the statements of profit and loss and retalned eamings are for the 12 months preceding the date of such balance sheet, and if such balance sheet is not ás of a date less than $ months before the date of resale, it shall be accormpanied by additional staternents of profit and loss and retalned eamings for the pertod from the date of such batenos sheet to a date less than £ months before the date of resale; and
B. The statement af the nature of the issuer’s business and ls products and services offered ís as of a date within 12 months pror to the date cf resale; or
C. With regard to foreign private issuers, the required Information meets the timing requirements of the iesuers home country or principal trading markets.
Dffers and sales of securities pursuant to this section shall be deemed not ta affect the availability of any exeraption or safe harbor relating to any previous cr subsequent offer or sale of such securities by the Issuer or any prior or subsequent holder thereof,
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