CVM Instruction No. 549 of June 24, 2014

CVM INSTRUCTION NO. 549, OF JUNE 24, 2014

Amends CVM Instruction No. 409, of August 18, 2004, which provides for the constitution, administration, operation, and disclosure of information by investment funds.

THE PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION – CVM makes it public that the Collegiate Board, in a meeting held on June 11, 2014, in view of the provisions of arts. 2, item V and §3, 8, item I, and 19 of Law No. 6,385, of December 7, 1976, APPROVED the following Instruction:

Art. 1 Arts. 62, 91, and 95-B of CVM Instruction No. 409, of August 18, 2004, shall enter into force with the following wording:

“Art. 62. ...........................................
§ 1° ..................................................
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IV – charging after the deduction of all expenses, including the management fee, which may include in the calculation base the values received by unitholders as amortization or income under the terms of art. 42.
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§5° Access Market Equity Funds constituted in the form of closed-end condominiums may use, as a reference parameter for the calculation of the performance fee, indices linked to interest rates or inflation.
§6º Access Market Equity Funds that use the prerogative provided for in § 5° of this article must observe, in addition to the criteria set forth in § 1°, items II to IV, of this article, at least one of the following mechanisms:
I – the performance fee must be calculated on the values actually received by unitholders, whether as amortization or income under the terms of art. 42, and which exceed the value of the total capital invested adjusted according to the reference parameter mentioned in § 5° of this article since the date of the first capitalization; II – if it is verified, at the end of the performance fee assessment period, that the fund’s share value is below the share value at the time of the last performance fee charge, the administrator must refund the fund the difference between the performance fee paid and that which would be due according to the current share value under the same deadlines and conditions established for the payment of the performance fee. §7° For the purpose of calculating the performance fee, the regulations of Access Market Equity Funds that, constituted in the form of closed-end condominiums, use the prerogative provided for in § 6°, item I, of this article, may provide that the values received by unitholders as amortization or income under the terms of art. 42 be corrected from the date of their receipt to the date of fee charge, at most, by the reference parameter.” (NR)

“Art. 91. ...........................................
Sole Paragraph. Access Market Equity Funds shall have a period of 180 days to reach the concentration limits by issuer and by asset class established in their regulations, whether closed-end or open-end.” (NR)

“Art. 95-B. .......................................
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§ 5º Equity funds whose investment policy provides that, at least, 2/3 (two-thirds) of their net asset value be invested in shares of companies listed in a trading segment for securities, aimed at the access market, instituted by a stock exchange or by an entity of the organized over-the-counter market, which ensures, through contractual link, differentiated corporate governance practices:
I – must use, in their name, the designation “Equities – Access Market”; and II – when constituted in the form of closed-end condominiums, may invest up to 1/3 (one-third) of their net asset value in shares, debentures, subscription warrants, or other titles and securities convertible or exchangeable into shares issued by closed companies. § 6º The fund that uses the prerogative of § 5°, item II, of this article must:
I – participate in the decision-making process of the invested company, with effective influence on the definition of its strategic policy and its management, notably through:
a) the indication of members of the Board of Directors; b) the holding of shares that constitute the respective control block; c) the execution of a shareholders’ agreement; or d) the execution of an agreement of a different nature or adoption of a procedure that ensures the fund effective influence on the definition of its strategic policy and its management; and II – invest only in closed companies that adopt the following governance practices:
a) prohibition of the issuance of preferred shares and the absence of such securities in circulation; b) establishment of a unified mandate of up to two (2) years for the entire Board of Directors; c) availability of shareholders’ agreements and programs for the acquisition of shares or other titles or securities issued by the company and disclosure of information on contracts with related parties in the manner required by CVM regulation for issuers registered in category A; d) adherence to an arbitration chamber for the resolution of corporate conflicts; e) in the event of its public offering, obligate itself, vis-à-vis the fund, to adhere to a special segment of a stock exchange or organized over-the-counter market that ensures, at minimum, the corporate governance practices provided for in the preceding items; f) annual audit of its financial statements by independent auditors registered with the CVM; and g) equal treatment in the event of change of control, through a put option for the sale of all shares issued by the company to the acquirer of control at the same price paid to the controller. § 7º For accounting purposes, the valuation of the fund’s participation in closed companies, for the fund that uses the prerogative of § 5°, item II, of this article, must be made, every 12 (twelve) months, at fair value, according to an accounting standard approved by the CVM on fair value measurement. § 8º Investment in Access Market Equity Funds, constituted in the form of closed-end condominiums intended exclusively for qualified investors, may be effected through a commitment, whereby the investor is obliged to capitalize the committed capital value as the fund administrator makes calls, according to deadlines, decision-making processes, and other procedures established in the respective investment commitment. § 9º The administrator of Access Market Equity Funds may hire, acting on behalf of the fund, legal entities duly registered with the administrators of the organized markets, as market makers, observing the current regulation, provided that:
I – such entity is not the administrator or manager of the fund or related parties to the administrator and manager of the fund; and II – the hiring and termination of the service provision are disclosed as a relevant fact under the terms of art. 72.” (NR)

Art. 2 CVM Instruction No. 409, of 2004, shall enter into force amended with the addition of art. 12-A, with the following wording:

“Art. 12-A. The regulation of the Access Market Equity Fund constituted in the form of closed-end condominium may authorize the fund to buy back its own shares, in the organized market in which the shares are admitted to trading, provided that:
I – the buyback price of the share is lower than the net asset value of the share of the day immediately preceding the buyback; II – the bought-back shares are cancelled; and III – the volume of buybacks does not exceed, in a period of 12 (twelve) months, 10% (ten percent) of the total shares of the fund. § 1° For the purpose of the provision in the caput, the fund administrator must announce the intention to buy back, through a market communication filed, at least 14 (fourteen) days in advance of the date on which it intends to start the buyback, with the administrator entity of the organized market in which the shares are admitted to trading. § 2° The communication referred to in § 1° of this article:
I – shall be valid for 12 (twelve) months, counted from the date of its filing; and II – shall contain information on the existence of a buyback program and the quantity of shares actually bought back in the last 3 fiscal years. § 3° The limit referred to in item III of the caput must reference the shares issued by the fund on the date of the communication referred to in § 1° of this article. § 4° It is prohibited for the Access Market Equity Fund to buy back its own shares:
I – whenever the administrator or manager has knowledge of information not yet disclosed to the market relating to its investments that could substantially alter the share value or influence the unitholder’s decision to buy, sell, or hold its shares; II – in a manner that influences the regular functioning of the market; and III – with the exclusive purpose of obtaining financial gains from expected variations in the share price.

Art. 3 Art. 37 of CVM Instruction No. 391, of July 16, 2003, shall enter into force with the following wording:

“Art. 37. The constitution of funds to invest in Private Equity Investment Funds, Emerging Companies Investment Funds, and Access Market Equity Funds, designated as Funds of Private Equity Investment Funds, shall be permitted.
Sole Paragraph. Funds of Private Equity Investment Funds must apply, at least, 90% (ninety percent) of their net asset value in shares of Private Equity Investment Funds, Emerging Companies Investment Funds, or Access Market Equity Funds.”

Art. 4 This Instruction enters into force on the date of its publication.

Signed original by
LEONARDO P. GOMES PEREIRA
President