CVM Instruction No. 462 of November 26, 2007, with amendments introduced by CVM Instructions No. 609/19 and 615/19

INSTRUCTION CVM NO. 462, OF NOVEMBER 26, 2007, WITH THE AMENDMENTS INTRODUCED BY CVM INSTRUCTIONS NO. 609/19 AND 615/19.

Provides for the Investment Fund of the Employment Guarantee Fund.

The PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Board, in a meeting held on November 21, 2007, in accordance with the provisions of art. 8, item I, of Law No. 6,385, of December 7, 1976, and art. 1, § 1, of Law No. 11,491, of June 20, 2007,

RESOLVED to issue the following Instruction:

Art. 1 This Instruction provides for the administration, operation, and disclosure of information of the Investment Fund of the Employment Guarantee Fund (FI-FGTS).

CHARACTERISTICS
Section I – General Provisions

Art. 2 The FI-FGTS is a pooling of resources, constituted in the form of an open-ended condominium, intended for investment in the construction, renovation, expansion, or implementation of infrastructure projects in the sectors of highways, ports, waterways, railways, energy, and sanitation.

Art. 3 The fund shall adopt the designation “Investment Fund of the Employment Guarantee Fund”, the addition of any other terms or expressions being prohibited.

Art. 4 The fund shall be governed by a bylaw, being exempt from the preparation of a prospectus.

Art. 5 The fund shall be administered and managed by Caixa Econômica Federal.

Art. 6 The fund shall have as unitholders only the Employment Guarantee Fund (FGTS) and, when authorized by the FGTS Curator Council, the Investment Fund in FI-FGTS Shares.

Section II – Registration

Art. 7 The operation of the fund shall depend on prior registration with the CVM, which shall be granted upon submission of the following documents:
I – fund bylaw;
II – data relating to the registration of the bylaw in the deeds and documents registry; II – REVOKED

• Item II revoked by CVM Instruction No. 615, of October 2, 2019.

III – declaration by the administrator that it has signed the contracts mentioned in art. 22 or that it is qualified to provide the services provided for therein and that such contracts are available to the CVM; and IV – indication of the name of the independent auditor.

Section III – Shares

Art. 8 The shares of the fund shall correspond to ideal fractions of its assets and shall be book-entry and registered.

Art. 9 The value of the share shall correspond to the division of the fund’s net assets by the number of shares issued.

Art. 10. The issuance and redemption of shares shall observe the provisions established by the FGTS Curator Council, and the rules to be established shall be included in the bylaws.

Art. 11. The distribution of FI-FGTS shares shall not require prior registration with the CVM.

BYLAWS
Section I – Mandatory Provisions

Art. 12. The bylaws shall, mandatorily, provide for:
I – qualification of the administrator;
II – qualification of the custodian;
III – conditions and deadlines for investment and redemption; IV – duration; V – investment policy, specifying the roles of the FGTS Curator Council and the Investment Committee in the analysis and selection of FI-FGTS investments; VI – definition of the maximum risk exposure of the fund’s investments and the methods used by the administrator to manage them; VII – existence and conditions of the guarantee referred to in art. 7, item IX of Law No. 8,036, of May 11, 1990; VIII – administration fee, fixed and expressed as an annual percentage of net assets (base of 252 days); IX – remuneration based on results (performance fee), if applicable;

X – other fund expenses;
XI – distribution of results;
XII – criteria for calculating the share value; XIII – fiscal year; XIV – information disclosure policy to interested parties, including those relating to portfolio composition, which shall be identical for all who request it; XV – policy regarding the exercise of the FI-FGTS voting right, by the administrator or its legally constituted representatives, in general assemblies of companies in which the fund holds participation; XVI – information on the applicable taxation of the fund and its unitholders.

§ 1º In defining the investment policy required in item V of the caput, information must be provided on:
I – the financial assets and participations eligible for acquisition by the fund and the respective maximum percentages of investment; II – the maximum percentages of the fund’s exposure in each of the sectors mentioned in art. 2; III – the maximum percentages of investment in each project; IV – the maximum percentages of investment in financial assets under the responsibility of the same natural or legal person; and V – the maximum percentages of investment in financial assets under the responsibility of the administrator or a company affiliated with it.

§ 2º The information disclosure policy required in item XIV of the caput must comply with the provisions of §§ 2 to 4 of art. 41 of CVM Instruction No. 409, of August 18, 2004.

§ 3º In the event of hiring a risk rating agency by the FI-FGTS, §§ 5 to 8 of art. 41 of CVM Instruction No. 409/04 shall apply.

Section II – Amendments

Art. 13. The bylaws may be amended by determination of the FGTS Curator Council, which shall determine the date from which the amendment shall be effective.

Art. 14. The administrator shall forward to the CVM, on the date the amendments enter into force, a copy of the bylaws, consolidating the amendments made.

Art. 15. The bylaws may be amended, independently of determination by the FGTS Curator Council, to meet express requirements of the CVM for compliance with legal or regulatory standards or due to the update of the administrator’s or custodian’s registration data, such as corporate name, address, and telephone number.

Art. 16. The administrator has a period of 30 (thirty) days, unless otherwise determined, to carry out the amendments determined by the CVM, counted from the receipt of the correspondence setting forth such requirements.

FGTS CURATOR COUNCIL

Art. 17. Without prejudice to the provisions of art. 5, XIII of Law No. 8,036/90, it is incumbent upon the FGTS Curator Council to deliberate on:
I – the financial statements presented by the administrator; II – the definition of the administration fee; III – alteration of the investment policy; and IV – alteration of the bylaws.

INVESTMENT COMMITTEE

Art. 18. It is incumbent upon the Investment Committee, provided for in Law No. 11,491, of June 20, 2007, without prejudice to other duties that may be delegated to it by the FGTS Curator Council, and which in this case must be included in the bylaws:
I – submit to the FGTS Curator Council a proposal for the FI-FGTS investment policy; and II – approve the investments and divestments of the FI-FGTS.

Art. 19. The manner of deliberation, operation, and composition of the Investment Committee must be provided for in the bylaws.

Art. 20. The Investment Committee may not be remunerated at the expense of the fund.

Art. 21. The existence of the Investment Committee does not absolve the administrator of liability for the fund’s operations.

Sole paragraph. The members of the Investment Committee must inform the administrator and the FGTS Curator Council of any situation that places them, potentially or effectively, in a conflict of interest with the fund.

ADMINISTRATION
Section I – General Provisions

Art. 22. Administration comprises the set of services directly or indirectly related to the operation and maintenance of the fund.

§ 1º The administrator may hire, in writing, on behalf of the fund, from duly qualified and authorized third parties, investment consulting and risk rating services by a specialized agency constituted in the Country.

§ 2º The administrator must hire, in writing, on behalf of the fund, from duly qualified and authorized third parties, the independent audit service.

§ 3º It is incumbent upon the administrator, in the capacity of the fund’s representative, to hire service providers, through prior and careful analysis and selection of the contractor, and must also appear in the contract as a consenting intervener.

§ 4º Contracts entered into on behalf of the fund must provide for joint and several liability between the administrator and the contracted third parties for any damages caused to unitholders due to conduct contrary to the law, the bylaws, and normative acts issued by the CVM.

§ 5º Independent of the joint and several liability referred to in § 4, the administrator is liable for damages resulting from its own acts and omissions that caused them, whenever it acts in a manner contrary to the law, the bylaws, and normative acts issued by the CVM.

§ 6º Without prejudice to the provisions of § 4, the administrator and each contracted service provider are liable to the CVM, within the scope of their respective competencies, for their own acts and omissions contrary to the law, the fund’s bylaws, and applicable regulatory provisions.

§ 7º The contracts referred to in this article must be maintained by the administrator and its respective contractors and made available to the CVM.

Section II – Remuneration

Art. 23. The bylaws must provide for the administration fee, and there may be remuneration based on the fund’s results (performance fee), with the charging of entry or exit fees being prohibited.

§ 1º The administration fee provided for in the caput cannot be increased without prior approval of the FGTS Curator Council, but may be reduced unilaterally by the administrator, who must communicate this fact immediately to the CVM, promoting the appropriate amendment to the bylaws.

§ 2º The administration fee must be accrued per business day, always as an expense of the fund, and appropriated as established in the bylaws.

Section III – Prohibitions, Obligations, and Conduct Standards

Art. 24. The prohibitions, obligations, and conduct standards provided for in arts. 64, 65, and 65-A of CVM Instruction No. 409/04 apply to the administrator of the FI-FGTS.

Sole paragraph. The FI-FGTS may carry out operations outside the organized securities markets.

DISCLOSURE OF INFORMATION
Section I – Periodic and Occasional Information

Art. 25. The administrator of the FI-FGTS must make the fund’s information available equally among all interested parties.

Sole paragraph. If the administrator discloses to third parties information regarding the composition of the fund’s portfolio, this information must be made public with the same frequency, except for the cases of disclosure of information to the fund’s service providers, necessary for the execution of their activities, as well as to regulatory bodies, the Investment Committee, and the FGTS Curator Council, in which case the informed party must maintain confidentiality regarding such information.

Art. 26. The administrator must forward the following documents to the CVM:
I – quarterly, within 15 (fifteen) days after the end of the civil quarter to which they refer, the following information:
a) value of the fund’s net assets; b) number of shares issued and book value of the share; c) quarterly profile; and d) the composition of the portfolio, detailing the quantity and type of securities and financial instruments that make it up.

II – semi-annually, within 60 (sixty) days after the end of this period, the following information:
a) financial statements relating to the period; b) charges debited to the fund, reasonably itemized with specification of their value; and c) the list of institutions responsible for providing custody services for the securities and financial instruments comprising the portfolio.

III – annually, within 90 (ninety) days after the end of the fiscal year, the following information:
a) the financial statements of the year, accompanied by the opinion of the independent auditor;

b) the book value of the share on the date of the closing of the balance sheet and its profitability during the period; and c) the charges debited to the fund, with their value and percentage relative to the fund’s average annual net assets specified.

§ 1º The deadline for correcting information is 3 (three) business days, counted from the end of the deadline established for the presentation of the documents.

§ 2º When the fund adopts the policy of exercising voting rights in general assemblies of companies in which it holds participation, the quarterly profile must include:
I – a summary of the content of the votes cast by the administrator, or its legally constituted representatives, in the general and special assemblies of the companies in which the fund holds participation that were held during the year; and II – a brief justification of the vote cast by the administrator or its legally constituted representatives, or the brief reasons for abstention or non-attendance at the general assembly.

Art. 27. The administrator is obliged to immediately disclose, through correspondence to unitholders and a communication through the Document Submission System available on the CVM website, any relevant act or fact occurring or related to the operation of the fund or to the assets comprising its portfolio.

§1º Any act or fact that may influence in a considerable manner the value of the shares or the decision of investors to acquire, alienate, or retain such shares is considered relevant.

§2º Among the information referred to in the caput, confidential information regarding the issuing companies of securities and financial instruments comprising the fund’s portfolio, obtained by the administrator under a commitment of confidentiality or by reason of its regular functions as a member or participant of the companies’ administrative or advisory bodies, shall not be included.

Section II – Financial Statements and Audit Reports

Art. 28. The FI-FGTS must have its own accounting records, and its accounts and financial statements must be segregated from the accounts and financial statements of the administrator and the FGTS.

Art. 29. The fiscal year of the FI-FGTS shall end every 12 (twelve) months, on December 31 of each year, when the fund’s financial statements relating to the period ended shall be prepared.

Art. 30. The financial statements must be made available to any interested party who requests them from the administrator, within 90 (ninety) days after the end of the fiscal year.

Art. 31. The preparation of the financial statements must observe the specific standards issued by the CVM.

Art. 32. The fund’s financial statements must be audited annually by an independent auditor registered with the CVM, observing the standards that regulate the exercise of this activity.

PORTFOLIO

Art. 33. The FI-FGTS must maintain its net assets invested in the financial assets or participations provided for by the FGTS Curator Council.

Art. 34. The bylaws must provide for investment limits for each class of financial asset or participation, by issuer, and by sector.

CHARGES

Art. 35. The provisions of Chapter IX of CVM Instruction No. 409/04 apply to the FI-FGTS, insofar as applicable.

LIQUIDATION AND CLOSURE

Art. 36. In the event of liquidation of the FI-FGTS, the administrator shall promote the division of its assets among the unitholders, in proportion to their shares, within a maximum period of 30 (thirty) days, from the act that determines the liquidation.

§ 1º The independent auditor must issue an opinion on the statement of net asset movement, covering the period between the date of the last audited financial statements and the date of the actual liquidation of the fund, commenting on the movements that occurred during the period.

§ 2º The explanatory notes to the fund’s financial statements must include an analysis regarding whether the redemption values were or were not effected on equitable terms and in accordance with the relevant regulations, as well as regarding the existence or non-existence of unrecorded debts, credits, assets, or liabilities.

§ 3º The administrator must maintain the audit opinion referred to in § 1º available to the CVM’s oversight even after the liquidation of the fund.

PENALTIES

Art. 37. The following conduct is considered a serious offense, for the purposes of the provisions of art. 11, § 3º, of Law No. 6,385, of December 7, 1976:
I – distribution of FI-FGTS shares without obtaining the operation registration with the CVM, or carried out by a person or institution not part of the distribution system; II – non-compliance with the fund’s investment policy; III – exercise by the administrator of unauthorized activity, or hiring of third parties not qualified or authorized to provide services to the fund; IV – non-publication of a relevant fact;

V – non-compliance with the accounting rules applicable to the fund; VI – non-compliance with the bylaws, including regarding concentration limits by sector, asset modality, and issuer; VII – non-compliance with the conduct duties referred to in art. 65-A of CVM Instruction No. 409/04.

Art. 38. Without prejudice to the provisions of art. 11 of Law No. 6,385/76, the administrator shall pay a daily fine of R$ 500.00 (five hundred reais), in accordance with the regulations in force, due to non-compliance with the deadlines provided for in this Instruction.

Art. 38. The administrator is subject to the daily fine provided for in the specific norm dealing with coercive fines due to non-compliance with the deadlines provided for in this Instruction, without prejudice to the provisions of art. 11 of Law No. 6,385, of 1976.

• Art. 38 with wording given by CVM Instruction No. 609, of June 25, 2019.

Art. 39. The CVM may apply penalties to directors, employees, and agents of the administrator, if their responsibility for non-compliance with the provisions of this Instruction is established.

FINAL PROVISIONS

Art. 40. The CVM may, at any time, request documents, additional information, or modifications to the documentation presented, as well as request the correction of procedures that have been adopted in disagreement with the current legislation.

Art. 41. This Instruction enters into force on the date of its publication in the Official Gazette of the Union.

Signed original by
MARIA HELENA DOS SANTOS FERNANDES DE SANTANA
President