CVM Instruction 459 (Revoked)

CVM INSTRUCTION NO. 459, OF SEPTEMBER 17, 2007, WITH THE CHANGES INTRODUCED BY CVM INSTRUCTION NO. 587/17.

Provides for the constitution, administration, operation, and information disclosure of investment funds exclusively linked to closed pension plans or life insurance policies with survival coverage clauses, structured in the variable contribution modality, as referred to in Arts. 76 and following of Law No. 11.196, of November 21, 2005.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION – CVM makes public that the Collegiate Board, in a meeting held on August 28, 2007, based on the provisions of Arts. 8, item I, 19, and 21 of Law No. 6.385, of December 7, 1976, and considering the provisions of Arts. 76 and following of Law No. 11.196, of November 21, 2005, resolved to issue the following Instruction:

Art. 1. This Instruction provides for investment funds constituted by open entities of closed pension insurance and insurance companies, exclusively linked to closed pension plans or life insurance policies with survival coverage clauses, structured in the variable contribution modality, as referred to in Arts. 76 and following of Law No. 11.196, of November 21, 2005.

Art. 1. This Instruction provides for investment funds constituted by open entities of closed pension insurance and insurance companies, exclusively linked to closed pension plans or insurance of persons, in accordance with the regulations issued by the National Council of Private Insurance.

• Art. 1 with wording given by CVM Instruction No. 587, of June 29, 2017.

Sole Paragraph. The assets of the investment funds referred to in this Instruction shall not be commingled with those of the entities or insurance companies that constitute them, nor shall they respond, even subsidiarily, for the debts of these entities, in the manner of Art. 78 of Law No. 11.196, of 2005.

Sole Paragraph. The assets of the investment funds referred to in this Instruction shall not be commingled with those of the entities or insurance companies that constitute them, nor shall they respond, even subsidiarily, for the debts of these entities.

• Sole Paragraph with wording given by CVM Instruction No. 587, of June 29, 2017.

Art. 2. For the purposes of this Instruction, the following are considered:

I – entities or insurance companies, respectively: the open entities of closed pension insurance and insurance companies that have instituted closed pension plans, and the insurance companies responsible for life insurance policies with survival coverage clauses, structured in the variable contribution modality; and

I – entities or insurance companies, respectively: the open entities of closed pension insurance and insurance companies that have instituted closed pension plans, and the insurance companies responsible for insurance of persons; and

• Item I with wording given by CVM Instruction No. 587, of June 29, 2017.

II – participants or insured persons, respectively: the participants of closed pension plans, and the insured persons who appear in the insurance policies, the acquisition of which is effected through the subscription of quotas of funds constituted based on this Instruction.

Art. 3. The investment funds referred to in this Instruction shall be governed by the provisions of CVM Instruction No. 409, of August 18, 2004, except for the provisions of this Instruction.

Art. 3. Except for the provisions of this Instruction, the investment funds referred to in this Instruction shall be governed by the provisions of the regulation that provides for the constitution, administration, operation, and information disclosure of investment funds.

• Art. 3 with wording given by CVM Instruction No. 587, of June 29, 2017.

Art. 4. The investment funds referred to in this Instruction shall be constituted as investment funds or investment funds in shares of investment funds, in the form of an open condominium.

Art. 5. Only the insured persons, the participants, and the legal entity that acquired the plan or collective insurance for their respective participants or insured persons may be quota holders of the investment funds referred to in this Instruction.

§ 1. The entity and the insurance company, as the case may be, may be quota holders as a result of the granting of a continuing benefit by a plan or insurance structured in the manner of Art. 76 of Law No. 11.196, of 2005, observing the provisions of § 2 of Art. 8.

§ 2. The subscription of quotas of the funds referred to in this Instruction shall be made before the fund administrator, in the manner of CVM Instruction No. 409, of 2004.

§ 2. The subscription of quotas of the funds referred to in this Instruction shall be made before the fund administrator, in the manner of the regulation that provides for the constitution, administration, operation, and information disclosure of investment funds.

• § 2 with wording given by CVM Instruction No. 587, of June 29, 2017.

Art. 6. The constitution of funds referred to in this Instruction shall occur exclusively by decision of entities and insurance companies, who are responsible, in the same act, for designating the administering institution, which must be authorized by the Securities and Exchange Commission – CVM to exercise the administration of securities portfolios.

§ 1. The entity and the insurance company must approve the investment fund regulations jointly with the administering institution at the time of its constitution.

§ 2. It is the exclusive responsibility of the administering institution to administer the portfolio of the funds referred to in this Instruction, with the option to hire a manager, in the manner of CVM Instruction No. 409, of 2004.

§ 2. It is the exclusive responsibility of the administering institution to administer the portfolio of the funds referred to in this Instruction, with the option to hire a manager, in the manner of the regulation that provides for the constitution, administration, operation, and information disclosure of investment funds.

• § 2 with wording given by CVM Instruction No. 587, of June 29, 2017.

§ 3. The replacement of the administrator and the manager shall be the exclusive responsibility of the entity or insurance company that decided on the constitution of the fund.

Art. 7. The composition of the portfolio of the funds referred to in this Instruction shall observe the regulations issued by the National Monetary Council – CMN and the National Council of Private Insurance – CNSP.

Art. 8. Without prejudice to the duties and obligations provided for in CVM Instruction No. 409, of 2004, it is incumbent upon the fund administrator, by written instruction from the entity or insurance company that constituted the fund:

Art. 8. Without prejudice to the duties and obligations provided for in the regulation that provides for the constitution, administration, operation, and information disclosure of investment funds, it is incumbent upon the fund administrator, by written instruction from the entity or insurance company that constituted the fund:

• Caput with wording given by CVM Instruction No. 587, of June 29, 2017.

I – promote the transfer of ownership of the fund quotas, the provisions of Art. 12 of CVM Instruction No. 409, of 2004, not applying:

I – promote the transfer of ownership of the fund quotas, the prohibition provided for in the regulation that provides for the constitution, administration, operation, and information disclosure of investment funds, not applying:

• Item I with wording given by CVM Instruction No. 587, of June 29, 2017.

a) from the legal entity that acquired the plan or collective insurance, to their respective participants or insured persons, as the case may be, in accordance with §§ 1 to 3 of Art. 77 of Law No. 11.196, of 2005; and

b) from the participant or insured person, to the entity or insurance company, as the case may be, in the event of granting a continuing benefit, in accordance with Art. 82 of Law No. 11.196, of 2005.

II – in the event of the death of the participant or insured person, arrange for the payment of the value corresponding to the redemption of the quotas to the beneficiaries informed by the entity or insurance company, regardless of inventory, if they have opted for redemption, in the manner of Art. 79 of Law No. 11.196, of 2005.

§ 1. In the cases provided for in items I and II of this article, the fund administrator must strictly comply with the instructions received from the entity or insurance company, and shall not be responsible for any errors or inaccuracies attributable exclusively to them.

§ 2. In the case of item “b” of item I, after the transfer of ownership to the entity or insurance company has been effected, the quotas must be redeemed within a period not exceeding 5 (five) business days.

Art. 9. Redemption requests for quotas of the funds referred to in this Instruction must be submitted to the entity or insurance company, as the case may be, which must forward them to the fund administrator within the period established by the Superintendence of Private Insurance – SUSEP.

Sole Paragraph. The redemption must be effected within the period established in the regulations, which may not exceed 5 (five) business days, counted from the date of receipt, by the fund administrator, of the redemption request forwarded by the entity or insurance company, as the case may be.

Art. 10. In addition to the provisions provided for in Art. 41 of Instruction No. 409, of 2004, the fund regulations must:

Art. 10. In addition to the provisions provided for in the regulation that provides for the constitution, administration, operation, and information disclosure of investment funds, the fund regulations must:

• Caput with wording given by CVM Instruction No. 587, of June 29, 2017.

I – contain authorization for the fund administrator, in the event of portability, to deliver the value corresponding to the redemption of the quotas of the participant or insured person:

a) to the administrator of the fund linked to the new plan or life insurance designated by the participant or insured person, to which the invested resources must be transferred, observing the regulation issued by SUSEP; and

b) to the insurance company or entity, as the case may be, in the event of portability to plans or insurances whose resources are not applied in funds constituted in accordance with the provisions of this Instruction.

II – provide that the liquidation, incorporation, merger, and spin-off of the fund may only occur in the cases provided for in the plan or insurance policy, as the case may be;

III – establish that the dismissal of the administrator and the appointment of a successor shall be the exclusive responsibility of the entity or insurance company to which the plan or insurance is linked, as the case may be; and

IV – contain authorization for entities authorized by the CVM to provide securities compensation and settlement services to make information regarding the portfolio and operations of the fund available to SUSEP.

Sole Paragraph. The fund prospectus must describe the procedures to be adopted for the purposes of the provisions of items I to IV of the caput of this article.

Art. 11. In the funds referred to in this Instruction, the charging of performance fees, as well as entry or exit fees for quota holders, shall not be permitted.

Art. 12. The bookkeeping, asset valuation, recognition of revenues, appropriation of expenses, and preparation of financial statements of the investment funds referred to in this Instruction shall be governed by the provisions of the Accounting Plan for Investment Funds – COFI, approved by CVM Instruction No. 438, of July 12, 2006, except for the provisions of this Instruction.

§ 1. The assets comprising the portfolios of the investment funds referred to in this Instruction must be recorded at the value actually contracted or paid, including brokerage fees and emoluments, and adjusted daily to market value, and the classification of any asset in the category of held-to-maturity is prohibited.

§ 2. The constitution and reversal of the mathematical provisions for benefits to be granted by the plans or insurances shall be recorded in the financial statements of the funds, and must observe the norms issued by SUSEP and the CNSP.

§ 3. The value of the fund quota shall correspond to the result of the division of the net asset value, plus the provisions referred to in § 2, by the number of fund quotas, both calculated from their amounts of the previous day, duly updated by one day.

Art. 13. If the quotas of funds constituted based on this Instruction are offered as collateral for real estate financing contracts, the contractual instrument provided for in Art. 86 of Law No. 11.196, of 2005, must be endorsed by the fund administrator in the quota holder register referred to in Art. 65, item I, item “a”, of CVM Instruction No. 409, of 2004.

Art. 13. If the quotas of funds constituted based on this Instruction are offered as collateral for real estate financing contracts, the contractual instrument provided for in Art. 86 of Law No. 11.196, of 2005, must be endorsed by the fund administrator in the quota holder register.

• Art. 13 with wording given by CVM Instruction No. 587, of June 29, 2017.

Art. 14. The funds referred to in this Instruction may only receive resources from participants or insured persons of products from the same entity or insurance company.

Art. 15. It is considered a serious offense, for the purposes of the provisions of Art. 11, § 3, of Law No. 6.385, of December 7, 1976, the exercise, by entities and insurance companies, of the activity of distributing quotas of investment funds referred to in this Instruction without prior registration with the CVM.

Art. 16. This Instruction enters into force 30 (thirty) days after the date of its publication in the Official Gazette of the Union.

Original signed by
MARIA HELENA DOS SANTOS FERNANDES DE SANTANA
President