CVM Instruction No. 352 of June 25, 2001 (Revoked)

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

Provides for the activity of autonomous investment agent.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION OF BRAZIL - CVM makes public that the Board, in a meeting held on June 22, 2001, in view of the provisions of Arts. 8, items I and III, and 16, items I and III, of Law No. 6,385, of December 7, 1976, and of Resolution of the National Monetary Council No. 2,838, of May 30, 2001, RESOLVED to issue the following Instruction:

ON SCOPE AND PURPOSE

Art. 1. The activity of autonomous investment agent is governed by the norms contained in this Instruction.

ON DEFINITION

Art. 2. The autonomous investment agent is a natural or legal person of a single profession, whose activity is the distribution and mediation of securities, quotas of investment funds, and derivatives, always under the responsibility and as an agent of the institutions integrated into the securities distribution system.

Art. 3. To exercise its activity, the autonomous investment agent must:
I - maintain a contract for distribution and mediation with one or more of the institutions referred to in Art. 2; II - carry out its distribution and mediation activity exclusively as an agent of the institutions referred to in Art. 2; and III - refrain from receiving or delivering to investors, for any reason, cash, securities, or other values, which must only be moved through financial institutions and the securities distribution system.

Sole Paragraph. The celebration, rescission, or extinction, in any form, of the contract referred to in item I of this article, must be communicated within a period of up to five days to the Securities and Exchange Commission of Brazil – CVM, by the contracting institution referred to in Art. 2, through electronic means, in the manner to be made available by CVM on its address on the World Wide Web.

ON AUTHORIZATION

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

Art. 4. The professional activity of autonomous investment agent can only be exercised by a natural or legal person authorized by CVM.

ON THE AUTONOMOUS INVESTMENT AGENT NATURAL PERSON

Art. 5. Authorization to exercise the activity of autonomous investment agent will only be granted to a natural person, domiciled in the country, who meets the following requirements:
I – completion of high school, in an officially recognized institution; II – approval in a technical exam administered by a certifying entity authorized by CVM; and III - clean reputation.

§1. The exercise of distribution and intermediation activities in the derivatives markets depends on approval in a specific certification exam, administered by a certifying entity authorized by CVM, which assesses knowledge about the functioning and risks inherent to these markets.

§2. The proof of minimum schooling referred to in item I shall be verified by the certifying entity, which will require the candidate to provide proof of schooling and attest to such schooling to CVM, by sending periodically to CVM, at the end of each certification exam period, the list of candidates approved therein.

Art. 6. The application for authorization to exercise the activity of autonomous investment agent, by a natural person, must be accompanied by the following documents:
I - registration form, duly filled out, contained in Annex I to this Instruction, which may be sent electronically, in the manner to be made available by CVM on its address on the World Wide Web; II - declaration by the applicant, which may be sent electronically, in the manner to be made available by CVM on its address on the World Wide Web, clarifying, under the penalties of law:
a) that he is not disqualified from holding a position in financial institutions and other entities authorized to operate by CVM or the Central Bank of Brazil, Superintendence of Private Insurance and Complementary Pension Secretariat; b) that he has not been criminally convicted in the last five years, or that, if so, he has served the sentence, and also does not present, at the time of the request, protest of titles or registration as a defaulter in the Register of Defaulters – CADIN;

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

c) that he is not included in the Register of Issuers of Bounced Checks of the Central Bank; d) that he is not bankrupt, in judicial reorganization, or insolvent; and e) that he has not, in the last five years, been an administrator of an entity subject to the control and supervision of CVM, the Central Bank of Brazil, the Superintendence of Private Insurance or the Complementary Pension Secretariat, which has had, in this period, its authorization revoked or has been subject to the regime of bankruptcy, judicial reorganization, intervention, extrajudicial liquidation or submitted to a regime of temporary special administration.

§1. In the event of sending by electronic means, the applicant will send to CVM, within thirty days after the sending of the declaration referred to in item II of this article, a letter confirming the authenticity of the information provided.

§2. CVM may demand, at any time, proof of the content of the declarations referred to in this article.

Art. 7. The certification exams will be organized by a class entity or self-regulatory entity, which brings together professionals, associations or institutions of the financial and capital markets.

Sole Paragraph. The certification program must be previously submitted for approval by CVM.

ON THE AUTONOMOUS INVESTMENT AGENT LEGAL PERSON

Art. 8. Authorization to exercise the activity of autonomous investment agent is only granted to a legal person of a single profession domiciled in the country that:
I - has as its exclusive corporate object the exercise of the activity of autonomous investment agent and is regularly constituted and registered in the CNPJ; and II – has as partners exclusively autonomous agents authorized by CVM, and attributes to them exclusively the exercise of the activities referred to in Art. 2, with the partners being responsible to CVM for the activities of the legal person, without prejudice to the registration indication of a director or managing partner as a representative before CVM.

Sole Paragraph. The registration data of the legal person, including with regard to changes in the articles of association and substitution or impediment of the director or managing partner, representative before CVM, must be kept updated through communication to CVM.

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

Art. 9. The application for authorization to exercise the activity of autonomous investment agent, by a legal person, must be accompanied by:
I - copy of the constitutive acts duly consolidated; and II - registration form, duly filled out, contained in Annex II to this Instruction.

ON THE PERIOD FOR GRANTING AUTHORIZATION

Art. 10. Authorization to exercise the activity of autonomous investment agent is granted through a Declaratory Act, to be issued within a period of thirty days, from the date of receipt of the application at CVM, duly accompanied by the respective documentation.

§1. After the period provided for in this article has elapsed, if there is no contrary manifestation by CVM, and provided that all formalities provided for in this Instruction have been complied with, the application for authorization is presumed approved, and the interested party may request the issuance of the respective Declaratory Act.

§2. The thirty-day period may be interrupted if CVM requests additional information from the interested party, starting a new thirty-day period from the date of compliance with the requirements.

§3. To meet the requirements, a period of no more than sixty days is granted, counted from the receipt of the respective correspondence, under penalty of rejection of the application.

ON REJECTION OF THE APPLICATION AND APPEAL

Art. 11. The rejection of the application for authorization to exercise the activity of autonomous investment agent must be communicated in writing to the interested party, with all documents that supported it being available to him, for a period of ninety days, counted from the date of receipt of the notice that the application was rejected, after which they may be destroyed by CVM.

Sole Paragraph. From the decision of the Superintendent who rejects the application, an appeal may be filed to the Board of CVM, in accordance with the regulations in force.

ON CANCELLATION OF AUTHORIZATION

Art. 12. Authorization to exercise the activity of autonomous investment agent, by a natural or legal person, may be cancelled, regardless of administrative inquiry:
I - if the falsity of the documents or declaration presented to obtain the authorization is found; or

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

II - if, due to a supervening fact duly proven, it becomes evident that the person authorized by CVM no longer meets any of the requirements and conditions, established in this Instruction, for the granting of the authorization.

§1. From the decision of the Superintendent who cancels the authorization, an appeal may be filed to the Board of CVM, in accordance with the regulations in force.

§2. In the event provided for in item I of this article, CVM will notify the Public Ministry to file the appropriate criminal action, without prejudice to the application of the applicable administrative sanctions.

ON INFORMATION

Art. 13. The autonomous investment agent, natural or legal person, must send to CVM, by May 31 of each year, updated registration information, in accordance with the provisions of Annexes I or II, as the case may be.

Sole Paragraph. Any registration change related to the autonomous investment agent must be communicated to CVM, within a period of five days, counted from its occurrence, without prejudice to the provisions of the caput of this article.

ON CODES OF CONDUCT

Art. 14. The autonomous investment agent must observe the following rules of conduct:
I - employ, in the exercise of its activity, the care and diligence that every active and upright man usually dispenses to the administration of his own business, being liable for any infractions or irregularities committed under his responsibility; II - avoid practices that may harm the fiduciary relationship maintained with its clients; III – keep confidential information to which he has access in the exercise of his function, as well as ensure that such duty is observed by third parties or subordinates of his trust; IV – promote the implementation and maintenance of a training program for administrators, collaborators and employees who have access to confidential information and/or participate in the investment process; and V – maintain restricted access to files, as well as adopt controls that restrict and allow identifying the persons who have access to confidential information.

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

ON PROHIBITIONS

Art. 15. It is prohibited to the autonomous investment agent:
I - receive or deliver to its clients, for any reason, cash, securities, or other values, which must be moved through financial institutions or members of the distribution system; II – be a proxy for its clients for any purpose; III – act as a counterparty, directly or indirectly, in operations in which the client participates, without prior authorization from the same; IV – contract with a client or investor the management of assets or the administration of a portfolio of securities, unless authorized by CVM to exercise such activity; V – fail to comply with or alter the contract signed with the client, without written authorization from the same; VI – advise the client to carry out a transaction with the purpose of obtaining, for himself or for others, undue advantage; VII – act on behalf and order of an institution for which he is not contracted; VIII – refuse to present identification document attesting to his quality as an autonomous investment agent; and IX – maintain a contract for distribution and intermediation with another autonomous investment agent, natural or legal person.

ON THE RESPONSIBILITY OF THE AUTONOMOUS INVESTMENT AGENT

Art. 16. The natural or legal person, in the exercise of the activity of autonomous investment agent, is civilly and administratively liable for damages resulting from its intentional or negligent acts and for those that violate legal, regulatory or statutory norms, without prejudice to the liability of the private legal person that hired it or supervised it inadequately, and to any criminal liability.

Sole Paragraph. The natural or legal person, in the exercise of the activity of autonomous investment agent, is subject to the confidentiality norms in force.

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

Art. 17. The autonomous agent who cumulatively exercises the activity of manager or portfolio administrator, for the same client, in accordance with item IV of Art. 15, must communicate to him in writing and with receipt, through a specific document, before the start of the provision of services, the exercise of that other activity, and the possibility of being remunerated by third parties as a result of its exercise.

Sole Paragraph. The notice referred to in the caput of this article does not exempt the autonomous agent from the duty of loyalty towards the client, and from compliance with the codes of conduct, and observance of the prohibitions, established in this Instruction.

ON PENALTIES AND PENALTY FINE

Art. 18. It constitutes a serious offense, for the purposes of the provisions of Art. 11, §3, of Law No. 6,385, of 1976, the exercise of the activity of autonomous investment agent by an unauthorized person, in accordance with this Instruction, or authorized based on false declarations or documents, the non-compliance with the duties established in Art. 14, items I, II and III, of this Instruction, and the non-observance of the prohibition established in Art. 15, item VI, of this Instruction.

Art. 19. Non-compliance with the provisions of items I to V and VI to IX of Art. 15 of this Instruction is subject to the summary procedure of the administrative process, in accordance with the regulation of the National Monetary Council.

Art. 20. The autonomous investment agent who does not send to CVM the information provided for in this Instruction or who does not keep its registration updated, in accordance with Art. 13 of this Instruction, is subject to a daily penalty fine of R$ 100.00 (one hundred reais), incident from the day following the end of the period established for compliance with the obligation, without prejudice to the responsibility provided for in Arts. 9, item V and 11 of Law No. 6,385, of 1976.

Sole Paragraph. The institutions referred to in Art. 2 that do not communicate to CVM the events referred to in the sole paragraph of Art. 3 are subject to the same penalties as the caput.

ON TRANSITORY PROVISIONS

Art. 21. Autonomous agents registered in the General Register of Autonomous Agents until May 30, 2001 may substitute the requirements required in items I and II of Art. 5 of this Instruction by:
I - proof, through declaration of the employer and copy of the professional card or the employee registration book, that the applicant, on that date, had been exercising for more than one year, as an employee of an institution referred to in Art. 2, activities covered in Art. 2; or

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

II - proof, through declaration of an institution referred to in Art. 2 and copy of the respective contract, that the applicant, on that date, had been exercising for more than six months the activity of autonomous agent, as an accredited member of the referred institution.

Art. 22. This Instruction enters into force on August 1, 2001.

Original signed by
NORMA JONSSEN PARENTE
Acting President

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

ANNEX I
AUTONOMOUS AGENT
NATURAL PERSON

I – REGISTRATION DATA
Name:
CPF: (DDD) Telephone/Fax:
Residential address:
Neighborhood: ZIP Code: City: State:
Address for correspondence:
Neighborhood: ZIP Code: City: State:
E-mail:

II – COMPLEMENTARY INFORMATION
Name of the Certifying Entity:
Attached Declaration (Art. 6, item II)

INSTRUCTION CVM No. 352, OF JUNE 25, 2001.

ANNEX II
AUTONOMOUS AGENT
LEGAL PERSON

I – REGISTRATION DATA
Corporate Name:
Trade Name:
CNPJ: (DDD) Telephone/Fax:
Address:
Neighborhood: ZIP Code: City: State:
E-mail:

II – RESPONSIBLE DIRECTOR OR MANAGING PARTNER
Name: CPF:
E-mail:
Attach to the request: Copy of the Constitutive Acts of the Legal Person Date: / / ______ Signature of the director or managing partner