Development Of The Securities Market In Panama example essay topic

INTRODUCTION This paper has the purpose of presenting the reader with a brief overview of an Initial Public Offering (IPO) performed in the republic of Panama. The Initial Public Offering process is complex and has significant consequences for a publicly held company. We will focus in describing the processes of registration and issuance of IPO's and all the parties involved in the process. Unfortunately, the securities market in Panama is in a developing phase, evolving towards a more dynamic state that reflects the economic reality, globally as well as domestically. 1. WHAT IS A INITIAL PUBLIC OFFERING OF SECURITIES The Initial Public Offering is a process whereby an issuer registers its securities at the National Securities of Commission (CNV) and offers them to the public.

An offer or sale made to persons domiciled in the Republic of Panama will be considered to have been made in the Republic of Panama, regardless of whether it was made from the Republic of Panama or from abroad, unless the CNV determines the opposite. An offer or sale made to persons domiciled outside the Republic of Panama will not be considered to have been an offer in the Republic of Panama even if it was made from the Republic of Panama. An investment banker recommends and advises a company during the public offering, helps to integrate a working team, must undertake the carrying out of the due diligence, assists in the technical preparation of the registration petition and the prospectus, (generally) signs a subscription contract with the company and maintains a relation with the issuer after the public offering. 2. CURRENT LEGISLATION The Executive Branch enacted Law-Decree No. 1 of 8 July 1999, which creates the NATIONAL SECURITIES COMMISSION (CNV) and regulates securities trading in the Republic of Panama; it's been modified by Laws 42 of 2000, 29 of 2001 and 11 of 2002. The NATIONAL COMMISSION OF SECURITIES was created as an autonomous entity of the State with legal capacity and its own possessions.

In order to guarantee its autonomy, the CNV: . Shall have its own funds separated and independent from those of the Central Government and shall have the right to manage them... Shall approve its income and expenses budget, which shall later be included within the general budget of the State. As long as the CNV budget includes funds provided by the State, its budget will be prepared by the Ministry of Economy and Finance as part of the State's budget...

Shall select, appoint and dismiss its personnel and set their remuneration, in conformity with the provisions of its internal set of regulations. 3. CONVENIENCES OF MAKING A PUBLIC OFFERING Advantages: Obtaining of cash, liquidity for employees and investors alike, access to markets for future financing, tax advantages. Disadvantages: Reduction of the flexibility in corporate affairs, compliance with reporting requirements of the CNV, restrictions in advertising matters, exposure to class action suits, initial and administrative expenses.

4. STEPS FOR THE INITIAL ISSUANCE OF THE INITIAL PUBLIC OFFERING 4.1. The integration of a working team The team is integrated by: . The team's administration. The Board of Directors.

The subscribers (investment bankers). The legal advisors of the issuing enterprise. The legal advisors of the subscribers. The external auditors of the issuing enterprise.

Others: a fiduciary, a registration, payment and transference agent. 4.2 Due diligence It's the process of ensuring that the information contained the registry application is correct, that the document does not omit any information required or necessary to prevent that statements, considered as a whole, are misleading. It's a fact-searching process. In order for a diligence to be satisfactory, it should: .

Interview the directors of the entity, exploring all aspects of the company... Contact the main clients of the issuer to verify the representations of the administration... Inspect the products made by the enterprise or the services it provides... Revise the financial statements with the auditors of the company... In conformity with jurisprudence, the due diligence varies in terms of the degree of participation of the work team.

4.3 Registration Petition (prospectus) An issuer whose securities shall be registered at the CNV shall present to it, through the intervention of a lawyer, a registration petition of such securities, in conformity with the provisions of Title V of the Law-Decree. This is a document of much importance and the omissions and / or false statements contained in it will generate administrative consequences (fines) and may serve as basis for civil suits. 4.3. 1. Rejection of public offering registration application The CNV will reject the petition whenever: . The issuer is a registered issuer and is overdue in the presentation of the interim and annual reports due to be filed in conformity with the Law-Decree... When either the prospectus, the information or the documentation are incomplete or do not fulfill the requirements established and / or contain any false statements in relation with an important fact or if it omits an important fact. 4.3.

2. CNV Requirements Securities registration petitions object of a public offering that requires authorization of the CNV, in conformity with the provisions of Title VI of Law-Decree No. 1 of 8 July 1999, must be filed through the intervention of a lawyer, accompanied by the following documents and in compliance with the following requirements: 1. Power of attorney; 2. Photocopy of the personal identity document ("c'edula") or passport of the legal representative, directors and officials of the petitioner; 3. Certificate of existence and representation of the entity, which shall include the name, date and incorporation data and inscription, duration, term, subscribers, Directors, Officials, Legal Representative, authorized capital, inscribed powers and resident agent of the petitioner, issued by the Public Registry within the thirty days prior to the date of the presentation of the petition.

In the case of foreign entities, a certificate of the Public Registry of the foreign country, or the entity that exercises functions similar to those of the Public Registry, issued within the previous sixty days of the presentation of the petition, stating all the information that is required to petitioners incorporated under Panamanian laws, must be included. 4. Copy of the Public Deed that contains the Articles of Incorporation of the petitioner, its amendments and certification of the inscription of such documents. 5. A copy of the Preliminary Informative Prospectus. 6.

Resolution of the Board of Directors or the competent governing body of the entity that authorizes the securities public offering, the number of them, their price, including all possible deductions, names of the persons who have power to authenticate, and the details of the offer. 7. Models of the securities that are intended to be sold, if applicable. 8. Audited financial statements, for the last fiscal year, issued by an independent Certified Public Accountant, interim financial statements at the last interim date prior to the date of the petition, duly certified by a Certified Public Accountant.

9. A sworn declaration submitted by the Legal Representative of the petitioner, about the compliance with the provisions in relation to the independence of the Certified Public Accountant - as provided in the Accord related to the Form and Contents of the Financial Statements - and the Legal Advisor, as provided by Article 16 of this Accord. 10. Projects of contracts that are part of the registration petition, whose final versions are to be presented, in copies authenticated by a notary, before the notification of the respective Resolution. 11. Opinion of a legal advisor about the securities registration petition, as prescribed by Articles 15 and 16 of the Accord.

12. Payment slips of the corresponding registration fee. 13. Documentation deemed necessary by the CNV for the information and protection of investors. 14. Whenever a statement, report or opinion of an expert person is enclosed, the person's name, address, credentials and a statement indicating that the opinion is enclosed with the consent of that person, must be included.

15. The petitioner must file with the petition the written opinion of an independent lawyer of law firm about the securities registration petition object of public offer, as for: 15.1 The proper incorporation and force of the persons that assume obligations as result of the registration of the securities for public offer, as well as their corporate capacity to celebrate contracts and to fulfill the obligations contracted therein. 15.2 The validity of the contracts that are integral part of the registration petition and that the rights and obligations included therein are legal, valid and demandable obligations. 15.3 The validity of contracts when contrasted to the clauses of the Articles of Incorporation, Statutes and Shareholders' Agreements of the petitioner, or the existing Laws, Decrees and sets of regulations of the Republic of Panama. 15.4 Obligations assumed by the petitioner and the parties of the contracts that are integral part of the registration petition, such as unconditional obligations assumed by such persons, that enjoy the same preference than the other non-guaranteed obligations by the petitioner. 15.5 The lawyer or law firm that issues the opinion referred to in the preceding Article, with respect to the securities registration petition, must be independent from the petitioner.

For that effect, a lawyer or law firm, or the Partners of the latter, shall not be considered independent if they are comprised in any of the following: 1. Intern legal advisor of the petitioner; 2. Director of Official of the petitioner; 3. Effective owner of 5% or more of the outstanding stock of the petitioner; and 4.

Administrative employee of the petitioner. The requirements of independence of the legal advisors is limited to the issuance of the opinion required in the previous Article, therefore the petitioner may receive at any moment advisory from a lawyer of law firm that do not fulfill the above requirements, including the presentation of the securities registration petition to the National Securities Commission. 4.3. 3. Prospectus contents and form Prospectuses shall include the financial statements and the information about the issuer, its operations, business and securities that the CNV prescribes. Prospectuses may contain any other additional information that the issuer wishes to include, as long as it is relevant and its inclusion is not forbidden. The prospectus should be printed in clear and legible copies.

The instructions included in Annex 1, pages 6 to 21, must be followed. 4.3. 4. Use of the prospectus in securities public offering No issuer or affiliated company of it or offerer may offer securities that shall be registered, if such offer is not made by means of a prospectus authorized by the CNV or a preliminary prospectus presented to the Commission. The CNV shall prescribe, by accord, the norms applicable to the use and distribution that should be given to the prospectus in relation with public offerings, in conformity with the provisions of the Law-Decree. 4.3. 5. Use of the prospectus in public offerings The CNV is empowered to establish the norms that will be applicable to the use and distribution of the prospectus.

Likewise, it has power to make exceptions as for the use of the prospectus when such use is not necessary for the protection of the investing public. Every offer shall be made by means of a prospectus authorized by the CNV and no issuer of affiliated shall offer securities without being previously registered and authorized by the CNV. 4.4 Registration Periods. Period previous to the registration at the CNV The CNV provides that the issuer of securities, persons affiliated to such issuer and / or it offer ers, may neither offer to purchase, nor purchase, nor offer to sale, nor sale the securities while the resolution has not become effective... Period or registration at the CNV When the petition is presented to the CNV for its approval, the following activities will be permitted, even thought they do not constitute a firm obligation to purchase or sell such securities: O The issuer, persons affiliated to it and its subscribers may offer the securities to sales agents. O Likewise, the persons mentioned above may request purchase orders from other persons.

When performing the above mentioned transactions, the trading must be accompanied by a preliminary prospectus, which must comply with all the requirements set forth by the CNV (it must feature in its cover a clear statement indicating that the securities described therein are in the process of being registered and that the information is subject to change). During that period, information or advertising material may not be distributed, except for those authorized by the CNV... Period posterior to registration at the Commission Whenever the resolution approving the registration of securities in the CNV becomes effective, offers may be made of such securities in any form, as long as they accompanied by a definitive prospectus. As requirement, every prospectus must be updated by means of a new prospectus or a supplement in the following cases: a. Immediately if during the offering period a fact such as the following takes place: a. 1.

A statement in the prospectus turns out to be false. a. 2. A fact should be divulged in order to make that a statement about an important fact, included in the prospectus, is not deemed misleading or tendentious considering in the circumstances under which it was made. b. Within the thirty days following the date the issuer files its annual report to the CNV. The CNV has the power to suspend the use of a prospectus until it is modified in case it finds that it has false information, omits important information which must be divulged, etc.

4.5 Contractual arrangements with the subscriber O The issuer generally holds a subscription contract with the investment banker. O Depending of the type of subscription, the subscriber may incur in the obligation of acquiring the securities offered by the issuer. O The subscription must be made firmly or based in the best efforts. 5. ROLE OF INVESTMENT BANKING IN IPO'S IN PANAMA.

Recommending and advising the enterprise in the public offering. Helping to integrate the working team. Procuring the realization of the due diligence. Assisting in the technical preparation of the registration petition and the prospectus.

Holding the subscription contract with the enterprise. Maintaining a relation with the issuer after the public offer 6. IPO's Made in Panama Among the IPO's made in Panama we have the following: . IDS Holding Corporation (Sears). Tropical Rainforest Resort (Gamboa Hotel).

Corporati " on Microfinanciera Nacional. Equus Entertainment de Panam'a (Presidente Rem " on Racetrack). Inversions Latinoamericanas (Inver lat) 7. Reasons for a company to choose to go public Some of the reasons for a company to go public are the following: a. Obtaining funds from the public offering of securities. With the funds obtained in this manner a company can increase its working capital, invest in research and development, expand premises and equipment, acquire other companies, etc. b.

Obtaining funds in more favorable terms. Once a market is created, and if the security (share) performs well, the company will be able to offer investors a security with liquidity and with a determinable market value. c. The company can contemplate the acquisition of other enterprise with its public shares, instead of using cash or acquiring debts with third parties. d. The enterprise may attract and retain better personnel by means of option plans for the purchase of its own shares by its employees. This is a great incentive to its labor force, thus generating more loyalty to the enterprises.

In principle, there will be less labor problems since employees would largely feel part of the enterprise and wish the best for it, since this would also be the best for them. e. The enterprise gains prestige and more recognition. Clients and suppliers may become shareholders and acquire the goods and services that their company produces. f. Liquidity is obtained for the owners.

Property in a close, non public business is an asset that lacks an immediate market. Once the company goes public, a market is or must be ready at any moment. g. The company can eliminate existing guarantees, such as personal and / or real guarantees, so avoiding the need of personal sureties by the shareholders. h. A sensation of financial success, at least of a psychological nature, is reached. i. Undoubtedly, in our environment the tax advantages constitute a decisive factor.

The existence of a special tax treatment for investments in registered securities is justified in the fact that, in this manner, individual resources can reach the productive enterprises that need them. This brings benefits for the country, which strengthens itself with enterprises that generate goods, services and jobs. Among the disadvantages and / or consequences of making an initial public offering we have the following: "u Reduction of the flexibility in corporate affairs. "u Starting administrative expenses increase. "u Compliance with the requirements of reporting to the CNV and those of the stock exchanges where the securities are listed. "u Restrictions in matters of advertising. "u Exposure to class action suits. "u Transparency. "u The issuer must maintain good relations with the holders of its securities. "u Sales of securities by persons who control them. 8. The securities market of Panama The intermediation of securities in Panama dates to many years ago. It could be said that it is as old as the Republic itself, which this year celebrates the centennial of its independence.

In its beginnings, this activity was carried out in an informal manner; it lacked mechanisms of organization and it did offer neither the information nor the sufficient transparency to protect the investing public. It was not until July 1970 when the National Government enacted Decree No. 247, which was later substituted by Law-Decree No. 1 of 8 July 1999, whereby the National Securities Commission was created and the Securities market in the Republic of Panama is regulated. At the beginning of the 1970's, a group of investors made serious and meritorious efforts to establish a stocks exchange, to the point of meeting periodically and publishing reports about the operations performed among them. However, the growth and development of both international banking and the National Banking Center caused, as a result, that both the National Government and the private sector found all the necessary financing in the Banking Market, rendering useless, at the time, the existence of a stocks exchange. By the early 1980's, the high levels of external indebtedness and a poor economic development caused a reduction of financing offers by the international financial system towards the Governments of Latin America.

Likewise, the past economic and political crisis Panama underwent during the years 1987, 1988 and 1989 caused that an informal securities market acquired significant importance as means of financial intermediation. Despite being an informal market, it had great acceptance within the Panamanian community, which made people estimate that it was the appropriate moment for the creation of a stocks exchange in Panama, that complied with the objective of serving as intermediate between the State and the private sector, on one side, and the investors, on the other, for the trading of securities. This way, a formal securities market is created in Panama, divided in a primary market and a secondary market. Over the years, Panama's Stock Exchange, along with the trading posts, stock traders and other collaborators of the national securities market have increased their efforts to divulge information on the newspapers about the negotiable securities in our country.

However, these efforts are focused on a specific and limited sector; thus preventing a sector of equal or higher purchase power from participating in Panama's Securities Market. In addition to this limitation, the lack of knowledge about the matter in a general level, by bank depositors -who are more focused in the banking center as source of income over their savings-, reveal the lack of investing opportunities, thus limiting the development of the Securities Market in Panama and, therefore, the development of the economy in the country. Panama is currently a country where a large part of the population lives in a situation of poverty; other part of the population generates income only large enough for survival. Because of this, talking about the existence of savings plans that could be turned into investments turns out to be somewhat cynical and cruel, since the savings habits of the average Panamanian is almost nonexistent. As a result, the universe of local investors is quite reduced. To make things worse, those investors that could invest find themselves skeptical and distrustful, due to recent financial scandals that have weakened the fundamental element for our system to work efficiently: trust.

However, despite the fact that we are advancing and we feel we are on the right track, since we have a better legislation than the one we had years back, there's no doubt that we still have so much to do. Facts, rather than words, are required. Reaching a fine level demands time and is a labor that involves many members of society. It is not a labor to be done isolated from the regulatory entity of the securities market. The private sector, as well as the Government and all of the community must participate. We must point out that the world economy has received severe blows in recent years, with the Securities Market being one of the most affected, a situation that generates mistrust among investors.

The bankruptcies of listed companies in the Exchange, the social and political instability in our country are some of the determining factors in the short- and medium-term development of the securities-trading activity. External auditors and independent public accountants also play an important role for the system to work efficiently. They must be important allies of the investing public and the CNV. Accountant perform a very important role, since they are, by law, to attest about the veracity of information related to transactions carried out by public companies, as well as the disclosure of their financial situation, with the purpose of facilitating decision-making by the shareholders. In light of new regulations that protect investors, such as the Sarbanes-Oxley Act of 2002 of the US, the CNV has taken actions on this subject and issued Accord 7-2002, whereby modifications are introduced to certain aspects that regulate registered companies and their auditors and accountants. Considering the current situation of the country's economy and the low levels of investments by depositors, it is necessary to awaken interest in the alternative investments represented by the Securities Market.

Also, the current crisis of International Banking Centers has surpassed its conditions to the National Banking Center, making attractive other investments alternatives that generate higher profitability for investors. The CNV is performing a titanic task that in many aspects implies a struggle against negative patterns of behavior too embedded in our society. However, with the effort of all, it is a labor that will produce large tangible benefits for the development of the country and its population. This way, we will be contributing to the successful development of this activity that generates new sources of financing for our businesspeople, which in turn produce higher levels of profitability for depositors that choose to invest in Panama's Securities Market. 9. The Panama Stock Exchange There's only one stock exchange in Panama, Bolsa de Valores de Panam'a, S.A. (Panama Stock Exchange, BVP in Spanish).

The BVP is a corporation incorporated under the laws of the Republic of Panama; its shareholding group is integrated by the main banks of the location, including the National Bank of Panama, as well as commercial, insurance and industrial enterprises, businesspersons, professionals and securities agents. The authorized capital of the BVP is US$1,800,000 divided in 180,000 shares. This level of capitalization is caused in first instance, by the interest of giving participation in the exchange to an ample and diversified number of shareholders and the purpose of setting up an administrative apparatus that could offer an efficient service and a data-processing system with capacity to store and having available and easy-to-access by the public, information about enterprises and entities whose securities are traded in the exchange. Exchange members must be entities with legal capacity, whose shares must have been issued in nominal manner in favor of natural persons, except in cases of banks or public-holding enterprises. Besides, members of the BVP must follow these requirements: .

To devote solely to securities negotiation in an exchange... To have a securities agent properly authorized by the BVP of Panama as legal representative or general holder of power of attorney... To feature a paid capital no lesser than US$250,000 and being owner of 2,500 shares of stock of BVP... To possess the necessary professional capacity for this kind of activities... To be the beneficiary of a fidelity and compliance policy that the BVP requests. At all times, members of the BVP are subject to audits and investigations that the BVP decides to carry on, and their rights may not be alienated to third parties without previous authorization by the BVP.

This way, the BVP will allow a large participation of all interested parties that comply with the necessary conditions for that. The BVP is a market where a series of products are traded and where buyers and sellers get in touch; it is a meeting place between two main characters in an economy: companies and saving depositors. The BVP fulfills an essential function in the growth of an economy, since it flows savings towards productive investment. It is a financing instrument for enterprises and of an investments one for saving depositors. In our country, the goal and objective of the BVP is to gather securities trading companies registered in it in order to perform trading of several classes of securities. Its function is to manage and regulate this process and to receive a commission that will vary depending on the type of instrument traded in its value.

The BVP must watch over the promotion and exchange of securities, both public and private, and that transactions are performed in accordance not only to the Law, but also to strict standards of commercial and professional ethics. It must also provide and maintain, available for the public, financial and commercial information about the enterprises registered in it. We consider pointing out that the fact that an enterprise is registered in the BVP, does not guarantee that investing in it is secure. The BVP's responsibility is limited to watch for the existence of a liquid and transparent market for securities quoting. Investors, aware of the inherent risks, are responsible for their decision of buying or selling a share of stock. 10.

Comparison between the IPO markets of Panama and the US In this section we " ll take a gross overview of the similarities and differences of IPO markets in Panama and the United States. These similarities and differences will help us to understand both markets and give us a better perspective of what to expect from these markets in terms of opportunities. 10.1 Similarities The main reason as to why companies in both markets, Panama and the US, decide to go public is the need to obtain capital. This need to obtain capital in both markets originates from the same reasons, that is, to increase its assets quickly and to expand and to pay debts.

A similarity between both markets is that they are regulated by an entity in charge of regulating, analyzing and watching over the sales of securities to the investing public. In Panama, that entity is the National Securities Commission, while the Securities and Exchange Commission holds those tasks in the United States. Both commissions have the power to create secure environments for investors. Another similarity between both IPO's markets is that carrying out that initial shares sales operation is costly, complex and requires too much human effort and capital. In both markets these costs may represent between 15 and 25% of the capital collected by the initial public offering of these securities. Both IPO regulatory entities demand a heap of information that must be filed to them.

They also demand that part of this information must be presented to investors and to the possible investors in a document called prospectus at both markets. The prospect must describe relevant facts about the operations of the company, its financial condition and its administration. In the Anglo-Saxon market, all companies wishing to offer their securities to the public must file form S-1. The prospectus must contain the following information as a minimum for both markets as well: 1. The business name 2. Properties 3.

Competitors 4. Identities of their officers and directors, and their compensations 5. Material transactions between the company and its officers and directors 6. Material legal proceedings involving the company or its officers and directors 7.

The plan for distributing the securities; and the intended use of the proceeds of the offering. Registration statements must include also the financial statements, audited by an independent certified public accountant. Besides the information required expressly by the form, the company must provide any other information deemed necessary to make a complete disclosure and avoid presenting misleading statements. The prospectus must also mention any other prominent risk, for example: 1. Lack of business during the company's history 2. Adverse conditions in that particular industry 3.

Lack of markets for the securities offered 4. Dependence of key personnel within the enterprise As we can see, all these similarities in the IPO registration process exist because Panamanian legislation is based on American legislation as for regulations for the issuance or securities. In the American market, after the IPO the company is obliged to comply with the requirements of reporting to the SEC the following information: 1. Its operations. 2. Its officials, directors and some of its shareholders, including salaries, benefits and transactions between a company and its administration.

3. The financial condition of the company, including the financial statements audited by an independent certified public accountant. 4. Its competitive position and material terms of contracts or lease agreements. This information must also be provided to the CNV by issuers of an IPO in Panama.

Another similarity between both environments is that issuances take approximately the same time to prepare and launch to the market. IPO's in Panama and the US typically take about 3 to 6 months. Half of the time is spent preparing the requirements for the SEC, while the rest, 4 to 6 months, is used for road shows to market the offering. A similarity worth mentioning is the role of the investing banker in the cases of initial public offerings. The role of the investment banker is the same in IPO's markets in both the USA and Panama. 10.2 Differences A clear difference between the IPO's markets in the USA and Panama is that while in the USA any issuance of IPO's are regulated by federal and state laws, in Panama they are regulated by the country's national laws, since there are not bounds imposed by the provinces separately.

Another important difference in the IPO's markets is that in Panama there is only one stock exchange, known as the Bolsa de Valores de Panam'a, S.A., whereas there are several stock exchanges in the USA, such as NYSE, AMEX and NASDAQ, where the IPO's can be traded. The markets of the IPO's differ much as for the size of each of them to make the initial offering, since the Panamanian market has a population of merely 2 million people, out of which only 6 to 7% has a savings and investing capacity, whereas in the USA there is a population of 292 million people with a high degree of investing power. Another difference between both markets is that transactions in the USA can be made on the Internet, while in Panama the technological platform to provide such service does not exist yet. Another difference about the initial offering in both markets is that there are no restrictions as for the initial price of the securities offering in the Panamanian market, as long as it has fulfilled the requirements of the CNV, whereas certain restrictions in the US market do exist about the initial price. CONCLUSION After our research, we can state that not all companies are eligible to go public, since this is a complex and costly decision, which requires legal and financial professional advice, in which accountants and lawyers play a preponderant role. By making a comparison between the IPO's in Panama and the United States, we can see that there are more similarities than differences between these two markets.

The larger amount of similarities is caused by the fact that the regulations in Panama are based on the American ones. The few differences we can find exist due to the discrepancies in size and development of each of these markets. As conclusion, we can say that IPO's in Panama resemble the worldwide trend of countries in development level, promoting its securities markets with the hope that those efforts can be seen reflected in terms of a more accelerated economic growth.