Download INVESTMENT FUND PORTFOLIO MANAGEMENT

INVESTMENT FUND PORTFOLIO MANAGEMENT AGREEMENT
A – PARTIES
INVESTMENT FUNDS adhering to this agreement and listed in Exhibit I hereto
(“FUNDS”), herein represented by their administrator, Banco Itaucard S.A.;
BANCO ITAUCARD S.A. (“ITAUCARD”)
CNPJ
17.192.451/0001-70
Address
City
State
Alameda Pedro Calil, No. 43
Poá
São Paulo
ITAÚ UNIBANCO S.A. (“ITAUBANCO”)
CNPJ
60.701.190/0001-40
Address
City
State
Praça Alfredo Egydio de Souza São Paulo
São Paulo
Aranha, 100
B – WHEREAS:
(a) ITAUCARD is duly authorized by regulatory agencies to provide activities
involving the administration of investment funds and to perform all acts set
forth in this agreement and in the applicable legislation;
(b) ITAUCARD is the administrator of the FUNDS listed in Exhibit I – List of
Funds and of the funds that may adhere to this agreement by inclusions in
Exhibit I, and the new adhering funds shall also be referred to as FUNDS.
(c) ITAUBANCO is duly authorized by the Brazilian Securities Commission
(“CVM”) for the professional management of securities and financial assets of
investment funds.
(d) ITAUBANCO shall provide portfolio management services to the FUNDS
pursuant to this agreement and to the legislation in effect.
C – CONTRACTUAL PROVISIONS
1. PURPOSE
1.1. ITAUBANCO shall manage the FUNDS portfolios and shall have
discretionary powers to decide on investment options.
1.2. ITAUBANCO shall manage the FUNDS portfolios by giving instructions to
ITAUCARD or directly to the providers of custody and/or controllership
services for the trading of securities and financial assets selected for the
FUNDS portfolios, with due regard or the provisions of this agreement.
2. RESPONSIBILITIES AND OBLIGATIONS OF ITAUCARD
2.1. As the administrator of the FUNDS, ITAUCARD shall be responsible, in
addition to other duties set forth in the legislation, for:
(a) retaining third parties to provide services to the FUNDS;
(b) provide information to inspection authorities, but the information incumbent
upon the service providers retained by the FUNDS shall be obtained from
them;
(c) diligence to maintain the books and records of the FUNDS, including those
of an accounting nature, in order;
(d) diligence, in the sphere of its authority, to exercise the rights resulting from
the FUNDS assets;
(e) defense of shareholders’ rights by performing all acts necessary to ensure
them in light of the circumstances, including judicial measures;
(f) inspection of the services provided by third parties retained by the FUNDS.
2.2. ITAUCARD undertakes as follows:
(a) to carry out the duties incumbent upon it as a result of the administration of
the FUNDS, except for the responsibilities delegated to ITAUBANCO in this
agreement or to third parties in specific agreements;
(b) to retain, as the case may be, a provider qualified and authorized for the
services involving custody and/or controllership of assets of the FUNDS
portfolios, and to immediately notify ITAUBANCO of the retaining of such
providers;
(c) to adopt all measures necessary so that ITAUBANCO, the custodian
and/or the controller retained may establish procedures and contacts
appropriate to the settlement of the transactions, controllership, and custody
of the FUNDS assets;
(d) to timely provide ITAUBANCO with all the information and instructions
necessary so that ITAUBANCO can perform the services contracted
hereunder, including procedures to be observed in the relationship with
service providers of custody and/or controllership of the FUNDS;
(e) to provide information to ITAUBANCO on a daily basis with respect to the
assets and the FUNDS portfolios composition or to allow such information to
be provided directly by the custody and/or controllership service providers;
(f) to pay or to cause the custody and/or controllership service providers to
pay the taxes levied on the investments on the FUNDS and on the
transactions carried out in their portfolios;
(g) to provide the shareholders with the statements and reports required by
the legislation;
(h) to provide ITAUBANCO with the bylaws and offering circulars of the
FUNDS;
(i) to call and hold meetings of the FUNDS pursuant to the legislation;
(j) to send to ITAUBANCO as soon as possible any notifications, notices,
delinquent notices, fines, or any other penalties applied by inspection
authorities resulting from activities carried out by ITAUBANCO so that
ITAUBANCO can join ITAUCARD in the defense of such proceedings or, if
joint defense is not possible, in order to offer subsidies so that ITAUCARD can
defend the FUNDS interests;
(k) to be jointly and severally liable with ITAUBANCO for any losses caused to
the shareholders by virtue of any conduct violating the law, the FUNDS
bylaws, and normative acts issued by the CVM.
3. RESPONSIBILITIES AND OBLIGATIONS OF ITAUBANCO
3.1. The powers to manage the FUNDS portfolios shall be exercised by
ITAUBANCO and encompass the activities of selection, assessment,
acquisition, disposition, subscription, conversion, swap, as well as rights in
connection with the financial assets and operating types composing such
portfolios.
3.2. ITAUBANCO undertakes as follows:
(a) to truly comply with the provisions of this agreement, of the bylaws and
offering circulars of the FUNDS, of the Self-Regulation Codes of the Brazilian
Association of Investment Banks (ANBID), and of the legislation applicable to
the FUNDS;
(b) to strictly comply with the investment policy and classification of the
FUNDS, their limits, risks, and portfolio composition criteria, including any
specific regulations from regulatory agencies, such as the Superintendence
for Private Insurance and the Private Pension Office, as the case may be;
(c) to provide instructions for the trading of the FUNDS assets containing the
identification, data, characteristics, and precise amounts thereof;
(d) to exercise its activities at all times seeking the best conditions for the
FUNDS;
(e) to comply with the limits of the FUNDS exposure to risks as established in
the respective regulations or previously informed by ITAUCARD;
(f) to provide ITAUCARD and the inspection authorities, as the case may be
and in the sphere of their authority, with information in connection with the
FUNDS transactions and to other activities that may be carried out during the
management of the FUNDS portfolios;
(g) to join ITAUCARD in the defense of such proceedings or, if joint defense is
not possible, to timely offer subsidies as soon as possible so that ITAUCARD
can defend the FUNDS interests in any notifications, notices, delinquent
notices, fines, or any other penalties applied by inspection authorities resulting
from activities carried out by ITAUBANCO
3.3. ITAUBANCO may not perform the following acts in the name of the
FUNDS, without prejudice to other prohibitions established in the legislation in
effect:
(a) to receive deposits in its bank account;
(b) to borrow or lend amounts, except in a type authorized by the CVM;
(c) to render surety, “aval” guarantee, acceptance, or to become a co-obligor
in any way;
(d) to promise predetermined gains to shareholders;
(e) to carry out transactions with stocks outside stock exchanges or organized
over-the-counter markets through an entity authorized by the CVM, except in
the events of public offerings, exercise of preemptive rights and conversion of
debentures into stocks, exercise of subscription warrants, and in the events
previously and expressly authorized by the CVM;
(f) to use the FUNDS to pay insurance against financial losses of
shareholders;
(g) to perform any acts of concession.
3.3.1. In light of the legal provisions, ITAUBANCO is hereby authorized to use
the assets of a given FUND in order to render guarantees of transactions it
carries for such FUND, and to lend and borrow securities, provided that such
loan transactions are solely carried out through a service authorized by the
CVM or by the Central Bank of Brazil.
4. FUNDS TRANSACTIONS ON FINANCIAL AND CAPITAL MARKETS
4.1. The services set forth in this agreement shall be provided subject to (i)
agreements, understandings, and exchange of documents between
ITAUCARD and ITAUBANCO; and (ii) completion of the transactions selected
for the FUNDS by ITAUBANCO.
4.2. As previously defined by ITAUCARD and ITAUBANCO, with due regard
for the mechanisms, terms, and conditions established in the agreements for
the custody and/or controllership of the FUNDS, if custody and/or
controllership service providers are retained for the settlement of the FUNDS
transactions, then:
(a) ITAUCARD may receive instructions for the FUNDS transactions and to
transmit them to the custody and/or controllership service providers; or
(b) ITAUBANCO may provide instructions for the FUNDS transactions directly
to such service providers.
4.3. ITAUCARD shall be responsible for providing all information and
instructions necessary so that ITAUBANCO can comply with the provisions
established in the foregoing sub-item.
5. APPRECIATION OF THE FUNDS PORTFOLIOS ASSETS
5.1. The appreciation of the FUNDS assets, including the calculation
methodology and information sources, shall be solely incumbent upon the
service of controllership of the FUNDS.
5.2. ITAUBANCO shall exert its best efforts to provide, in the sphere of its
authority, the party in charge for the appreciation of the FUNDS portfolios
assets with the information and data deemed necessary.
6. CONFIDENTIALITY
6.1. The parties, its officers, employees and representatives for any reason
shall maintain confidentiality about all the information to which they have
access as a result of this agreement (“CONFIDENTIAL INFORMATION”)
during its performance and after its closing.
6.2. All documents, general, commercial, operating information or other
private data of the parties, its clients and of persons or entities with whom they
have any relationship shall be considered as CONFIDENTIAL
INFORMATION, except only those which (i) are or become of public domain
without the interference of any party; and (ii) are known by any party or its
representatives prior to the commencement of negotiations which result in this
agreement.
6.3. The parties may only disclose to third parties CONFIDENTIAL
INFORMATION upon prior written authorization from the party that owns said
information, except in the case of determination of a public authority or as a
result of a judicial order, in which cases they shall proceed as follows: (i) they
shall immediately notify the owner of the CONFIDENTIAL INFORMATION
about the order from the public authority or judge, except if the notification
reflects any prohibition in this sense; and (ii) they shall provide the information
and subsidies that may be required for the owner of the CONFIDENTIAL
INFORMATION, at its discretion, to defend itself from the disclosure of any
confidential information.
6.4. Besides being a contractual violation, the violation of the duty of
confidentiality, including that which may be committed by its employees,
officers and representatives for any reason, compels the violating party to pay
indemnity without prejudice to continuing performing the duty of confidentiality
in that which it may apply.
7. REMUNERATION
7.1. As remuneration for the services set forth in this agreement, ITAUBANCO
shall receive the equivalent to ten percent (10%) of the administration fee and
one hundred percent (100%) of the performance fee of the FUNDS.
7.2. ITAUBANCO’s remuneration shall be provisioned and appropriated
pursuant to the respective bylaws of the FUNDS and shall be paid no later
than the fifth (5th) business day of the month subsequent to the month of the
actual collection of the administration and performance fees by ITAUCARD.
8. VALIDITY
8.1. This agreement shall be valid for an indefinite term.
9. ASSIGNMENT
9.1. The assignment of rights and transfer of obligations arising out of this
agreement without consent from the other party is hereby prohibited, except in
the event the parties fully or partially assign the company belonging to its
economic conglomerates to us, and provided that (i) the assignees are
authorized by the CVM to act as administrators of financial resources; (ii) the
assignees are approved by the shareholders of the FUNDS in a shareholders’
meeting.
10. DEFAULT FINE AND INTEREST
10.1. If any delay occurs in the payment of any debt set forth herein, the
defaulting party shall pay default interest of twelve percent (12%) per annum
and default fine of two percent (2%) on the monetarily restated amount, as
from the due date until the date of settlement, according to the variation of the
General Market price Index published by the Getúlio Vargas Foundation
(IGPM/FGV) or, in the absence thereof, of the Internal Available Supply
published by the Getúlio Vargas Foundation (IGP-DI/FGV) or, in the absence
of both, of the Consumer Price Index published by the Economic Research
Institute (IPC/FIPE), as from the date of disbursement up the date of
reimbursement thereof, plus interest in the event of delay of twelve percent
(12%) per annum and a fine of ten percent (10%).
11. DAMAGES
11.1. The parties agree to be liable for the damages that have been evidently
caused by one of them to the other, or to third parties, resulting from the
services covered by this agreement.
11.2. The damages set forth in the previous sub-item include the expenses
and losses arising out of awards, fines, interest and other penalties imposed
by laws, regulations or inspecting authorities in administrative or judicial
proceedings, as well as the fees of counsel incurred in the respective
defenses.
11.3. The defaulting party shall reimburse, within the maximum term of five (5)
days as from the notice that is sent to it, accompanied by the respective
evidential documents and statements, the amount corresponding to any
losses caused to the other party, including those regarding court costs and
fees of counsel, restated based on the variation of the IGPM/FGV or, in its
absence, of the IGP-DI/FGV or, in the absence of both, of the IPC/FIPE,
counted as from the date of disbursement up the date of receipt thereof, plus
interest in the event of delay of twelve percent (12%) per annum and a fine of
two percent (2%).
12. TERMINATION
12.1. This agreement may be terminated at the discretion of the nondefaulting or aggrieved party in the following events:
(a) If any party defaults on any obligation set forth herein and after having
been notified in writing by the other party fails, within a term of five (5) days as
from the receipt of the mentioned notice, to cure its default and/or to pay to
the aggrieved party the damages proven to have been caused;
(b) Irrespective of prior notice, if any party suffers legitimate protest of credit
instruments, files for or by any other reason is under a judicial reorganization
proceeding, has had its bankruptcy decreed or suffers dissolution or
intervention, whether judicial or extra-judicial;
(c) Supervening laws, regulations and/or instructions from the proper
authorities, notably the CVM and the Central Bank of Brazil, preventing or
modifying the nature, terms or conditions hereof;
(d) Removal of ITAUBANCO or ITAUCARD by resolution of a shareholders’
meeting;
(e)
Resignation of ITAUBANCO or of ITAUCARD;
(f)
Disqualification of ITAUBANCO or of ITAUCARD from exercising the
professional activity of portfolio management by a decision from the CVM.
12.2. In the event of termination of this agreement, the following procedures
shall be adopted:
(a) in the event of disqualification of ITAUBANCO, ITAUCARD shall take over
the management of the FUNDS portfolios until the shareholders’ meeting
decides on the replacement thereof; in the event of disqualification of
ITAUCARD, the CVM shall appoint a provisional administrator;
(b) in the event of resignation from any of the parties, ITAUCARD shall call a
shareholders’ meeting in order to pass a resolution on the replacement of the
resigning party, which shall remain in office until its actual replacement, with
due regard for the maximum term of thirty (30) days as of the resignation date;
(c) in the other events of termination, ITAUCARD shall call a shareholders’
meeting in order to pass a resolution on the reasons leading to the decision to
terminate this agreement, and on the continuity of the service providers or
their replacement.
13. GENERAL PROVISIONS
13.1. This agreement is executed without an obligation of exclusivity, and the
parties may, by mutual agreement, use or associate the services and products
to each other’s names and trademarks, including in call notices and
advertising materials.
13.2. The parties undertake to notify each other of any revocation of the
authorizations mentioned in the preamble hereto for the activities of
administration of investment funds and of portfolios.
13.3. For the purposes of this agreement: (i) ITAUCARD shall include in
Exhibit I all the FUNDS that wish to contract management from ITAUBANCO,
and the completion of the adhesion of each one of such FUNDS shall be
conditioned upon a decision from the corresponding shareholders’ meeting;
(ii) ITAUCARD shall call shareholders’ meetings in order to propose the
transfer of the management of the FUNDS to ITAUBANCO; (iii) if the proposal
for the transfer of the management of the FUNDS to ITAUBANCO is approved
in a shareholders’ meeting, the effectiveness of this agreement for each one
of such FUNDS shall begin on the date defined by the corresponding
shareholders’ meeting for the completion of the management transfer; and (iv)
if the proposal for the transfer of the management of the FUNDS to
ITAUBANCO is not approved, ITAUCARD shall remove from Exhibit I only the
FUNDS that dissent from such proposal, and this agreement will have never
produced effects on such FUNDS.
13.5.(sic) This agreement terminates and supersedes any previous
agreements as well as any of its amendments entered into by and between
the parties and which have the same subject-matter.
14. FORBEARANCE
14.1. Forbearance by any of the parties as to default on any obligation by the
other party shall not represent waiver of the right to seek performance of the
obligation, nor pardon, nor amendment of what has been contracted
hereunder.
15. JURISDICTION
15.1. The parties elect the Courts of the Judicial District of the Capital City of
the State of São Paulo.
This instrument is signed in two (2) counterparts.
São Paulo, November 8, 2010
BANCO ITAUCARD S.A.
(sgd)
Paulo Eikievicius Corchaki
(sgd)
Marco Antonio Antunes
Officer
ITAÚ UNIBANCO S.A.
(sgd)
Paulo Eikievicius Corchaki
(sgd)
Roberto Massaru Nishikawa
Witnesses:
1. (sgd)
Name: Tatiana Grecco
I.D. (R.G.): 22.539.046-2
2. (sgd)
Name: Paulo Sergio Tai
I.D. (R.G.): 14.983.423-8
INVESTMENT FUND PORTFOLIO MANAGEMENT AGREEMENT
EXHIBIT I – LIST OF FUNDS
Name of Fund
IT NOW IFNC Index Fund
São Paulo, November 8, 2010
BANCO ITAUCARD S.A.
(sgd)
Paulo Eikievicius Corchaki
(sgd)
Marco Antonio Antunes
Officer
ITAÚ UNIBANCO S.A.
(sgd)
Paulo Eikievicius Corchaki
(sgd)
Roberto Massaru Nishikawa
CNPJ
11.961.094/0001-8
AMENDMENT TO THE INVESTMENT FUND PORTFOLIO
MANAGEMENT AGREEMENT
INVESTMENT FUNDS, listed in Exhibit I to the Investment Fund Portfolio
Management Agreement, designated FUNDS, herein represented by its administrator:
Banco Itaucard S.A, identified below;
BANCO ITAUCARD S.A., with its principal place of business at Alameda Pedro Calil,
No. 43, Poá, São Paulo – State of São Paulo, National Corporate Taxpayers Register
(CNPJ) No. 17.192.451/0001-70, herein designated ITAUCARD, as the FUNDS’
representative.
ITAÚ UNIBANCO S.A., with its principal place of business at Praça Alfredo Egydio de
Souza Aranha, No. 100, Itaúsa Tower, São Paulo – State of São Paulo, National Corporate
Taxpayers Register (CNPJ) No. 60.701.19010001-04, herein designated ITAUBANCO
which is designated the PORTFOLIO MANAGER;
The parties resolve to amend the Investment Fund Portfolio Management Agreement
entered into on November 8, 2010 (“Agreement”), for the purpose of:
I) The parties resolve to change Exhibit I to the Agreement to include IT NOW ISE
INDEX FUND, enrolled with the National Corporate Taxpayers Register (CNPJ) under
No. 12.984.444/0001-98 and IT NOW IGCT INDEX FUND, enrolled with the
National Corporate Taxpayers Register (CNPJ) No. 11.184.136/0001-15, as principals of
the services which are the subject-matter of the agreement.
II) As a result of the changes provided for above, Exhibit I to the Agreement is hereby
replaced and shall become effective with the following wording included in this
Amendment.
III) The other provisions not expressly changed by this instrument are hereby ratified.
This Agreement is executed in two (2) copies.
São Paulo, May 16, 2011.
BANCO ITAUCARD S.A.
(sgd)
Paulo E. Corchaki
Officer
Number: 005692637
(sgd)
Marco Antonio Antunes
Officer
ITAÚ UNIBANCO S.A.
(sgd)
Paulo E. Corchaki
Officer
Number: 005692637
(sgd)
Marco Antonio Antunes
Officer
Witnesses:
1. (sgd)
Name: Tatiana Grecco
Identity Card (RG) No.: 22.539.046-2
Taxpayer Card (CPF) No.: 167.629.258-63
2. (sgd)
Name: Paulo Sergio Tai
Identity Card (RG) No.: 14.983.423-8
Taxpayer Card (CPF) No.: 082.833.688-18
AMENDMENT TO THE INVESTMENT FUND PORTFOLIO
MANAGEMENT AGREEMENT
EXHIBIT I – LIST OF FUNDS
FUND
National Corporate Taxpayers Register (CNPJ)
IT NOW IFNC INDEX FUND
11.961.094/0001-81
IT NOW ISE INDEX FUND
12.984.444/0001-98
IT NOW IGCT INDEX FUND
11.184.136/0001-15
São Paulo, May 16, 2011.
BANCO ITAUCARD S.A.
(sgd)
Paulo E. Corchaki
Officer
Number: 005692637
(sgd)
Marco Antonio Antunes
Officer
ITAÚ UNIBANCO S.A.
(sgd)
Paulo E. Corchaki
Officer
Number: 005692637
(sgd)
Marco Antonio Antunes
Officer
Witnesses:
1. (sgd)
Name: Tatiana Grecco
Identity Card (RG) No.: 22.539.046-2
Taxpayer Card (CPF) No.: 167.629.258-63
2. (sgd)
Name: Paulo Sergio Tai
Identity Card (RG) No.: 14.983.423-8
Taxpayer Card (CPF) No.: 082.833.688-18
AMENDMENT TO PORTFOLIO MANAGEMENT AGREEMENT
INVESTMENT FUNDS listed in Exhibit I to the Portfolio Management Agreement,
hereby represented by its administrator, BANCO ITAUCARD S.A., identified below
(“FUNDS”)
BANCO ITAUCARD S.A. (“ITAUCARD”), CNPJ:
herein as representative of the FUNDS and as 17.192.451/0001-70
intervening consenting party
Address
City
State
Postal Code
Alameda Pedro Calil, 43
Poá
SP
08557-105
ITAU UNIBANCO S.A. (“ITAUBANCO”)
Address
City
Praça Alfredo Egydio de Souza São Paulo
Aranha, 100 - Torre Olavo Setúbal
CNPJ
60.701.190/0001-04
State
Postal Code
SP
04309-010
1. The Parties entered into the Portfolio Management Agreement on November 08, 2010
(“Agreement”), subsequently amended.
2. The Parties wish to amend Exhibit I to the Agreement in order to include the IT NOW
IDIV INDEX FUND, enrolled with the CNPJ under No. 13.416.245-0001-46, and the
IT NOW IMAT INDEX FUND, enrolled with the CNPJ under No. 13.416.228/000109, as principals of the services under the Agreement, as from the respective organization
dates.
3. The PARTIES agree that the provisions and conditions of this amendment shall
produce its legal effects, in relation to each amendment, on the respective dates of
effectiveness set forth in the item above.
4. As a result of the amendment set forth above, Exhibit I to the Agreement is replaced
and shall hereinafter be in effect with the wording of Exhibit I to this amendment.
5. All other provisions of the Agreement not expressly modified hereby are ratified.
6. The parties elect the courts of the Judicial District of São Paulo, State of São Paulo.
This instrument is executed in two (2) counterparts.
São Paulo, August 8, 2011.
BANCO ITAUCARD S.A.
(sgd)
Paulo Eikievicius Corchaki
Officer
Employee: 005692637
(sgd)
Ciro Eduardo Santalucia
Superintendent Officer
64119/A
ITAÚ UNIBANCO S.A.
(sgd)
Paulo Eikievicius Corchaki
Officer
Employee: 005692637
(sgd)
Ciro Eduardo Santalucia
Superintendent Officer
64119/A
Witnesses:
1. (sgd)
Name: Tatiana Grecco
Taxpayer Card (CPF): 22.539.046-2
2. (sgd)
Name:
Taxpayer Card (CPF):
AMENDMENT TO PORTFOLIO MANAGEMENT AGREEMENT
EXHIBIT I – LIST OF FUNDS
FUND
IT NOW IFNC INDEX FUND
IT NOW ISE INDEX FUND
IT NOW IGCT INDEX FUND
IT NOW IDIV INDEX FUND
IT NOW IMAT INDEX FUND
São Paulo, August 8, 2011.
BANCO ITAUCARD S.A.
(sgd)
Paulo Eikievicius Corchaki
Officer
Employee: 005692637
(sgd)
Ciro Eduardo Santalucia
Superintendent Officer
64119/A
ITAÚ UNIBANCO S.A.
(sgd)
Paulo Eikievicius Corchaki
Officer
Employee: 005692637
(sgd)
Ciro Eduardo Santalucia
Superintendent Officer
64119/A
Witnesses:
1. (sgd)
Name: Tatiana Grecco
Taxpayer Card (CPF): 22.539.046-2
2. (sgd)
Name:
Taxpayer Card (CPF):
CNPJ
11.961.094/0001-81
12.984.444/0001-98
11.184.136/0001-15
13.416.245-0001-46
13.416.228/0001-09