CVM Instruction 326 (Repealed)

Amends CVM Instructions Nos. 302, 303 and 304, of May 5, 1999.

The PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Board, in a meeting held on this date, having regard to the provisions of CMN Resolution No. 1,787, of February 1, 1991, and Article 19 of Law No. 6,385, of December 7, 1976, HAS RESOLVED to issue the following Instruction:

Art. 1o
The arts. 8o, 9o, 13, 21, 34, 35, 36, 37, 38, 39, 42, 45, 46, 48, 51, 53, 54, 55, 57, 65, 66, 68, 71, 72, 73, 79, 86, 89, 92, 96, 99, 100, 108 and 109 of CVM Instruction No. 302, of May 5, 1999, shall enter into force with the following wording:

“Art. 8o ......
§1o The provision in the main text does not apply when the shareholder is a fund of funds of investment in securities or one of the investors referred to in items II and III of art. 99. ......” (NR)

“Art. 9o The fund that intends to carry out operations with derivatives that may result in significant asset losses or, in particular, lead to negative net worth, must insert, respectively, on the cover of its prospectus and in all disclosure material, in a clear, legible and prominent manner, one of the following warnings, as appropriate:
......” (NR)

“Art. 13 ......
IV – declaration by the fund administrator that it has signed the contracts mentioned in arts. 51 and 52, if applicable, and that they are available to the CVM; ......” (NR)

“Art. 21. In the case of an open fund, the issuance of shares must use the value calculated at the close of the day or the day following the effective availability of the resources entrusted by investors to the administrator, as provided in the fund's regulations.” (NR)

“Art. 34 ......

§3o Whenever the prospectus is amended, the fund administrator must send a copy to the CVM.” (NR)

“Art. 35 ......
IV – specification, in a prominent and clear manner, of the fees and other expenses of the fund;
......
XI – taxation applicable to the fund and its shareholders.
Sole paragraph. The prospectus must contain, in a prominent manner, the following statement: "The authorization for the sale of shares of this fund does not imply, on the part of the CVM, a guarantee of the truthfulness of the information provided or a judgment on the quality of the fund or its administrator" (NR)

“Art. 36 ......
V - conditions for the redemption of shares, including amortization, in the case of a closed fund; VI - distribution of results; VII – target audience; and VIII – in a prominent manner, management fees, entry and exit fees, and, if applicable, performance fees.” (NR)

“Art. 37. The amendment of the fund's regulations depends on the approval of the general meeting of shareholders, convened specifically for this purpose, by correspondence, from which the amendments to be proposed must be expressly stated.” (NR)

“Art. 38 ......
I - declaration by the administrator, attesting that correspondence has been sent to all shareholders, specifying the matter to be deliberated; ......” (NR)

“Art. 39 ......

Sole paragraph. These amendments must be communicated to shareholders, by correspondence, within a period of up to thirty days.” (NR)

“Art. 42. The convening of the general meeting must be done by correspondence sent to each shareholder.
......” (NR)

“Art. 45. The deliberations of the general meeting, which must be installed with the presence of at least one shareholder or legal representative, are taken by the criterion of the majority of shares held by shareholders present, with one vote assigned to each share. Sole paragraph. The matters provided for in items "c", "d", "e", "f" and "i" of item I of art. 41, in the case of a closed fund, can only be approved by the vote of shareholders who hold the absolute majority of the issued shares.” (NR)

“Art. 46. Only shareholders of the fund, their legal representatives or attorneys legally constituted for less than one year may vote in the general meeting.”

“Art. 48. The summary of the decisions of the general meeting must be sent to each shareholder, at the latest by the month following its holding, and the monthly extract referred to in item II of art. 63 may be used for this purpose.” (NR)

“Art. 51 ......
§2o Contracts for the provision of services for the fund signed by its administrator with third parties must be kept available to the CVM.” (NR)

“Art. 53. ......
Sole paragraph. In cases where the same institution administers several funds, the grouping of orders will be admitted, provided that the administrator has implemented a system that allows the allocation, among the funds, of purchases and sales, through equitable and pre-established criteria, and the record of such distribution must be kept available to the CVM for a minimum period of one year.” (NR)

“Art. 54. The regulations must provide for the criteria for determining and conditions for payment of the management fee, of a fee based on the fund's result (performance fee), if any, and may also provide for entry and/or exit fees. §1o The fees provided for in the main text cannot be increased without prior approval of the general meeting; the administrator may, however, unilaterally reduce the fees to which it is entitled, communicating the fact to the CVM and shareholders, and promoting the appropriate amendment of the prospectus.

§2o Performance fees may only be charged in funds that meet cumulatively the conditions listed below:
a) minimum individual value of the initial investment and holding in the fund of R$50,000.00 (fifty thousand reais); b) minimum individual value of other movements of R$ 5,000.00 (five thousand reais). §3o The charging of the performance fee must meet the following criteria:
a) linkage to a previously approved stock market index by the CVM; b) charging by period, at least semi-annually; c) charging after the deduction of all expenses, including the management fee; and d) provisioning, per business day, in order to reflect in the fund's share the effect of this provision. §4o The charging of a performance fee is prohibited when the value of the fund's share is lower than its value at the time of the last effective charge. §5o If the shareholder enters the fund when the value of the share is lower than the value of the same at the time of the last effective charge, the fund administrator may charge an adjustment on the individual performance of the shareholder, until the value of the share reaches again the value at the time of the last effective performance charge, provided that this is clearly stated in the fund's regulations. §6o Funds intended exclusively for qualified investors may charge a performance fee, according to the provisions of their regulations. §7o The administrator may establish that portions of the management fee are paid directly by the fund to the contracted service providers, provided that the sum of these portions does not exceed the total amount of the management fee fixed in the fund's regulations. §8o The management fee of open funds must be appropriated per business day as an expense of the fund.” (NR)

“Art. 55 ......
VII – apply resources in the subscription or acquisition of shares of its own issuance, except as provided in § 4o of art. 86.” (NR)

“Art. 57. ......
XI – request, if applicable, the admission to trading of closed fund shares on a stock exchange or in an organized over-the-counter market;
......
§1o The shareholder service must be directly subordinate to the director responsible to the CVM for the administration of the fund or to another director specially indicated to the CVM for this function. §2o The telephone number and address for correspondence of the service mentioned in item XII must appear in the information sent to shareholders.” (NR)

“Art. 65. If the shareholder has not notified the fund administrator of the update of their address, the sending of the information provided for in this Instruction is not mandatory if the last correspondence sent has been returned due to incorrect address declared.” (NR)

“Art. 66. ......
III – ......
b) opinion of the independent auditor, relating to the accounting statements; and c) list of judicial or extrajudicial demands, whether in defense of shareholders' rights or by these against the fund administration, indicating the date of their start, the stage in which they are at, and the final solution, if any.” (NR)

“Art. 68. ......
I - ......
b) value and composition of the portfolio, discriminating quantity, type and quotation of the shares, securities and securities that make it up, the value of each investment and its percentage on the net worth, highlighting, if any, investments in affiliated companies or in funds administered by the administrator; and
......
V - brokerage expenses, comprising the total value debited to the fund and the percentage of the value debited as brokerage expenses in relation to the average value of the fund's stock portfolio.” (NR)

“Art. 71. Any disclosure of information about the fund's results can only be made, by any means, after a waiting period of six months, from the effective start of the fund's operation.”(NR)

“Art. 72. Any information, disclosed by any means, in which reference is made to the fund's profitability, must necessarily:
I - mention the date of the start of its operation; II – refer, at minimum, to a period of 1 (one) calendar month, with the disclosure of profitability calculated in periods less than that prohibited; III – cover, at minimum, the last three years or the period since its constitution, if more recent; IV – be accompanied by the value of the arithmetic mean of the sum of its net worth calculated on the last business day of each month, in the last three years or since its constitution, if more recent. ......” (NR)

“Art. 73. The disclosure of profitability must be accompanied by a comparison, in the same period, with a market index compatible with its investment policy.
§1o The index used for the comparison referred to in the main text must be maintained in the other disclosures of the fund's profitability, during its existence.
§2o Without prejudice to the provisions of the main text, comparison with other performance parameters is permitted.” (NR)

“Art. 79. The accounting statements must be made available to any interested party who requests them from the administrator, within a period of sixty days after the closing of the period.” (NR.)

“Art. 86......
§3o The provision in the main text does not apply to funds administered by institutions controlled, directly or indirectly, by the Federal Union.
§4o Funds that seek to reproduce market indices may acquire shares issued by their administrator or by companies affiliated with it, if included in said indices, up to the limit of such participations.” (NR)

“Art. 89. Any expenses not provided for as charges of the fund, except those provided for in § 5o of art. 54, are borne by the administrator.” (NR)

“Art. 92 ......
I - declaration by the administrator, attesting that correspondence has been sent to all shareholders, specifying the matter to be deliberated;
......
III – balance sheets and calculation memorandum for the conversion of shares;
......
Sole paragraph. The fund administrator must present to the CVM, within a period of 60 (sixty) days, counted from the date of delivery of the documents referred to in items I to VI of this article, the audit opinion relating to the statement of spin-off, incorporation or merger.” (NR)

“Art. 96. ......
II - declaration by the administrator, attesting that correspondence has been sent to all shareholders, specifying the matter to be deliberated; and ......” (NR)

“Art. 99 ......
IV – non-financial legal entities with net worth exceeding R$5,000,000.00 (five million reais); V – individual investors who possess securities portfolios with a value exceeding R$ 250,000.00 (two hundred and fifty thousand reais); VI – investment funds in shares intended exclusively for qualified investors; and VII – natural persons with assets exceeding R$ 5,000,000.00 (five million reais) proven through the declaration of assets presented at the time of the last income tax return.” (NR)

“Art. 100......
III - charge a management fee based on the fund's results, exempted from the requirements provided for in §§ 2o, 3o, 4o and 5o of art. 54 of this Instruction; IV - exempt from the preparation of a prospectus; and V – exempt from the preparation of the semi-annual report. ......” (NR)

“Art. 108 ......
§1o The CVM may create, amend, include or suppress the programs referred to in the main text.
§2o For the purposes of this Instruction, electronic mail is considered a valid form of correspondence between the administrator and shareholders.” (NR)

“Art. 109. ......
§1o The adaptations promoted by the administrator to adapt the fund's regulations to the norms of this Instruction must be approved by shareholders assembled in a general meeting installed in accordance with the provisions of Chapter VII. §2o If, after two convocations, the meeting is not installed due to the absence of shareholders, the administrator is obliged to adapt the fund's regulations to this Instruction, submit it to this Commission and communicate such changes to shareholders by correspondence, within a period of up to thirty days counted from the approval of the adaptation by the CVM.” (NR)

Art. 2o
The arts. 2o and 3o of CVM Instruction No. 303, of May 5, 1999, shall enter into force with the following wording:

“Art. 2o ......
VII – positions in derivative markets, involving contracts referenced in stocks, stock indices or interest rates, carried out in organized markets on a trading floor or in an electronic system that meets the same conditions of the competitive systems administered by stock exchanges, futures exchanges or organized over-the-counter markets;

......
X - shares issued by companies signatories of the Treaty of Asunción (MERCOSUR) or depositary certificates of these shares admitted to public trading in the Brazilian securities market; and XI - Depositary Receipts, tradable in the international market, backed by securities issued by open companies registered with the CVM. Sole paragraph. Only funds intended for qualified investors may acquire shares of mutual investment funds in emerging companies or maintain positions in derivative markets, involving contracts referenced in commodities or exchange.” (NR)

“Art. 3o
The prospectus and the fund's regulations must clearly indicate the investment policy and the asset allocation ranges, and the prevailing asset in the composition of its portfolio must appear in the fund's name.” (NR)

Art. 3o
The arts. 1o, 2o, 3o, 5o and 6o of CVM Instruction No. 304, of May 5, 1999, shall enter into force with the following wording:

“Art. 1o The investment fund in shares of investment funds in securities and securities is governed by this Instruction and by general norms issued by the Securities and Exchange Commission on investment funds in securities and securities.” (NR)

“Art. 2o ......
§1o Only share funds intended exclusively for qualified investors may acquire shares of mutual investment funds in emerging companies.
§2o The fund that acquires shares of funds that cover a management fee based on its result (performance fee) must meet one of the following conditions:
I - require a minimum individual value of the initial investment and holding in the fund of R$ 50,000.00 (fifty thousand reais) and of other movements of R$ 5,000.00 (five thousand reais); II - be intended exclusively for qualified investors.” (NR)

“Art. 3o
The remaining five percent of its assets may be kept in demand deposits or applied in:
......” (NR)

“Art. 5o
The fund that invests in shares of funds that carry out operations with derivatives, which may result in significant asset losses or negative net worth, must explicitly state, respectively, on the cover of its prospectus, and in all disclosure material, one of the following warnings, as appropriate:
......”(NR)

“Art. 6o
The fund administrator is obliged to include in the semi-annual report information on the management fees and portfolios of funds that represent more than thirty percent of the applications.” (NR)

Art. 4o
This Instruction enters into force on the date of its publication in the Official Gazette of the Union.

Signed original by
JOSÉ LUIZ OSORIO DE ALMEIDA FILHO
President