A escolha e a destituição de administradores das sociedades limitadas vão se tornar mais fáceis com a sanção do Projeto de Lei 1.212/22, aprovado pelo Senado Federal no fim de agosto.
A partir de 2025, todas as companhias com ações listadas na B3 terão que informar se contam com pelo menos uma mulher e uma pessoa pertencente a um grupo minoritário (como negros, indígenas, pessoas com deficiência ou LGBTQIA+) na alta administração (diretoria estatutária e conselho de administração).
Muito se fala sobre o dever de divulgação de fatos relevantes pelas companhias abertas. Trata-se de uma das principais obrigações dos acionistas controladores e administradores, em especial do diretor de relações com investidores, sendo alvo constante de fiscalização por parte da Comissão de Valores Mobiliários (CVM).
– Controversy regarding separate election in publicly held companies
– Former partner’s liability for debts of a limited liability company
– Brazilian Securities and Exchange Commission sanctions managers of a publicly held company for irregularities in a Shareholders’ Meeting
The season for ordinary shareholders’ meetings is approaching and several companies, in addition to approving the management accounts and the financial statements, must deliberate on the election or reelection of directors for a new term. Considering the several modalities of elections that can be adopted, a matter that usually leads to different interpretations is the applicability of the separate election in publicly-held companies.
The separate election of a member of the board of directors, contemplated in paragraph 4 of article 141 of the Brazilian Corporation Law, is a mechanism to protect minority shareholders and aims to ensure their representation on the board of directors. This structure is applicable only to publicly held companies and exclusively to minority shareholders that provide evidence of uninterrupted ownership of their shares in the company during the three months immediately prior to the shareholders’ meeting in question. For the separate election to be applicable, the uninterrupted ownership of shares must be of 15% of the voting capital or 10% of the capital stock, nevertheless, the Brazilian Securities and Exchange Commission(“CVM“) understands that, for companies that only issue voting shares (common shares), the percentage of 10% applies.
The controversy regarding the applicability of the separate election arises at the moment that shareholders of corporations without a controlling shareholder or defined block of control, consider electing separately a member of the board of directors, exercising this right guaranteed by the Brazilian Corporation Law. CVM has not yet expressly stated its position on the matter, and, therefore, two interpretative currents may be identified.
Although this issue is rarely addressed in a specific and public manner by legal experts, who end up discussing the matter in individual opinions and consultations with clients, many believe that the adoption of the mechanism of separate election presumes the existence of a controlling shareholder or a defined block of control. For many of them, as a mechanism to protect minority shareholders from abuses by controlling shareholders, it would be contradictory that the separate election could be adopted in a company without a defined controlling shareholder, since there would be no shareholder to be prevented from participating in such separate election. In other words, in this case, if there is no controlling shareholder, all shareholders could qualify as “minority” in the separate election.
Nevertheless, some legal experts argue that the adoption or not of the separate election mechanism in companies that do not have a controlling shareholder, or a defined block of control should be analyzed on a case-by-case basis, taking into consideration the company’s capital structure and the behavior of the shareholders with greater preeminence in management over time. The defenders of this position argue that the adoption of separate election would make sense in case the relevant minority shareholder has participation exceeding the legal quorums (of 10% and 15%) and the power to elect alone the majority of the members of the board of directors in a certain meeting (or all of them, in the case of election of a short list).
Despite the discussion, in practice there are publicly held companies that do not even provide the questions related to the separate election in the remote voting bulletin, as is the case of B3. And according to public information, none of them have been questioned about this practice so far.
CVM has already expressed its position on the topic indirectly in the analysis report of the public hearing on the amendment of CVM Instruction No. 481, released on December 20, 2017. At the time, the Commission acknowledged that the distance voting bulletin items regarding the separate election may not be applicable to all companies, but did not expressly agree that such a mechanism could not be adopted generally by corporations without a controlling shareholder.
Until CVM is provoked to specifically address the issue more clearly, the discussion is likely to continue.
The text above was published in Portuguese in the Legislação & Mercado section of Capital Aberto on March 15, 2022, and can be accessed through the link below:
The liability of a partner after selling its quotas in a limited liability company or the dissolution of the company is often discussed.
The Brazilian Civil Code establishes that the assigning partner is jointly liable with the assignee, before the company and third parties, for the obligations it had as a partner, up to two years after the amendment to the articles of association regarding its withdrawal from the company.
It is important to emphasize that this legal provision does not constitute an unlimited, unrestricted, joint and several liability of the assignor partner for any debts of the company. It constitutes, however, the liability of the assignor for the obligations it had as a partner, and the obligations of the partner are not to be confused with the obligations of the company itself.
As a rule, the liability of each partner is limited to the value of their quotas and all are jointly and severally liable for the payment of the capital stock. In other words, as a general rule, partners and former partners are not liable for the debts of a limited liability company.
As stated in the Brazilian Civil Code, “the patrimonial autonomy of legal entities is a legal instrument of risk allocation and segregation, established by law with the purpose of stimulating undertakings, for the generation of jobs, taxes, income, and innovation for the benefit of all”.
However, in certain specific cases, limited liability company’s creditors may resort to the assets of the partners (and former partners) to settle debts, among which we highlight the piercing of the corporate veil.
Recently, the Superior Court of Justice (STJ) decided that in the case of former partner liability arising from the piercing of the corporate veil, the former partner is not accountable for the company’s debts incurred after its formal withdrawal, even if the debts refer to the period of two years after its withdrawal. In this case, it was understood that the two-year period provided for in the Brazilian Civil Code is the time limit for collection from the partner for obligations assumed prior to its exit.
Although this STJ decision is not binding, it is extremely relevant, because in several decisions from different courts, including the STJ itself, the liability of withdrawing partners has often not been restricted to the period in which they still held ownership.
In another STJ judgment, which discussed the possibility of holding the partners and their personal assets liable for the remaining debt owned by a company that was regularly terminated, the court considered that in limited liability companies, after paying-in the capital stock, the partners are not liable with their personal assets for the debts owed by the company, so that the succession depends intrinsically on proof of the existence of positive net equity and its effective distribution among the partners.
Therefore, there is no increase in the former partner’s liabilities at the time the partner withdraws from the limited liability company, there is only a time limitation on the collection for applicable obligations related to the time of their participation in the company.
The text above was published in Portuguese in the Legislação & Mercado section of Capital Aberto on April 20, 2022, and can be accessed through the link below:
On April 26, 2022, the Brazilian Securities and Exchange Commission (“CVM“) judged the Administrative Sanctioning Proceeding (“PAS“) CVM SEI No. 19957.003922/2020-50, filed by the Superintendence of Company Relations (“SEP“) to ascertain supposedly abuses of officers during a shareholders’ meeting.
At the time, the controlling shareholders, who were also the chief executive officer and vice president of the company, voted and approved their own accounts as managers, indirectly through other companies controlled by them, aside from an abusive compensation for themselves, in non-compliance with Law No. 6.404/1976 (“Brazilian Corporation Law“).
The defendants argued that the legal prohibitions for approving the accounts would affect only the person of the manager and not companies of which they were shareholders and questioned the conclusion of the technical area regarding the allegation of abusive compensation, declaring that the values approved were in in line with market practices and with the competence and experience of the managers.
In her vote, Reporting Officer Flávia Sant’Anna Perlingeiro, in line with CVM precedents, reinforced that the prohibition imposed on managers for the approval of their own accounts, provided for in articles 115, §1 and 134, §1 of the Brazilian Corporation Law, should affect the legal entities controlled by them in cases where it is not possible to dissociate the will of a particular shareholder, legal entity, from the influence of the shareholder-manager, who is prevented from deliberating on his own accounts, as it was confirmed in the present case.
Regarding the approval of abusive compensation for their own benefit, the Reporting Officer stated that in cases where the compensation of managers is discussed, the commission must interpret article 152 of the Corporation Law, which provides that the compensation of managers must be fixed considering their responsibilities, the time dedicated to their functions, competence and professional reputation and the value of the services in the market, as a beacon. Since it will be from these criteria that the values of the global or individual compensation will be formulated and justified, concluding that, the performance of the controlling shareholder who approves the compensation in disagreement with such guidelines may constitute an abuse of the power of control in the light of article 116 , §1 of the Corporation Law.
In the case under analysis, it was found that the defendants received high compensations when compared to the company’s revenue, and during two fiscal years the remuneration exceeded the company’s revenue, which, according to the Reporting Officer, given the absence of consistent justification in meeting the social interest, reveals a clear disproportionality, even more so considering the company was facing financial difficulties, in a scenario of negative net equity and the impossibility of distributing dividends.
Nevertheless, the Reporting Officer’s acknowledged that the company’s revenue will not always be an adequate criterion for determining the existence of abuse in setting the managers’ compensation, given that the circumstances of each case are relevant to elucidate the fundamentals of compensation and whether they adhere to the social interest.
Finally, CVM’s Board unanimously decided to sentence each of the company’s managers to pay R$210,000.00 (two hundred and ten thousand reais) for the approval of their own accounts and R$ 425,000.00 (four hundred and twenty-five thousand reais) regarding the approval of abusive compensation.
The full text of PAS CVM SEI 19957.003922/2020-50 can be accessed in Portuguese through the following link:
Quando se fala em mecanismos de liquidez e saída no âmbito de acordo de acionistas, busca-se regular formas para que determinado sócio deixe de integrar o quadro acionário de uma companhia. Em outras palavras, um mecanismo de liquidez e saída é uma estrutura que garante a determinado sócio o direito de converter suas ações em dinheiro, além de sua saída da empresa.
– Improvement to the Remote Voting Forms for the season of Shareholders’ Meetings
– CVM publishes six new Resolutions and includes mandatory disclosure of notice of corporate demands
B3 introduced improvements to the voting forms, in particular to facilitate the election of the board of directors through the multiple voting procedure, allowing shareholders to distribute their votes proportionally in a different (even smaller) group of candidates than the one nominated in the simple election, which until the beginning of this year was not possible.
This amendment was designed to increase shareholders’ voting options in distance voting, in addition to simplifying and providing more security to voting, considering the possibility of mistakes in reading the votes manually imputed by shareholders in the system, especially if we consider that in most cases, shareholders choose to divide their votes equally among some candidates.
In addition, the improvements also include: (i) the possibility of including in the remote voting form a resolution with fixed text specific for the election of the president and vice-president of the company’s board of directors, which promotes a good practice of corporate governance, and (ii) the availability of an English version of the system’s standardized questions, an important measure to reduce potential problems of interpretation by foreign shareholders.
We contributed on the subject in the article “B3 improves voting instruments for shareholders’ meetings” published in the legislation and market section of “Capital Aberto”, on April 06, 2022, which can be accessed through the link below:
https://legislacaoemercados.capitalaberto.com.br/voto-a-distancia-ganha-novas-possibilidades/
Over the past few years, it is possible to observe a significant increase in discussions involving ESG topics in the management of companies around the world. Although social and environmental aspects are gaining increasing prominence, the most advanced pillar in Brazil today is corporate governance.
Since the creation of the Novo Mercado segment of the B3 stock exchange in 2000, the Brazilian market has been establishing a high standard of governance, with the adhesion of specific practices and obligations aiming at increasing transparency in the disclosure of information for the decision-making process of shareholders and investors.
In this context, unsurprisingly, the result of a recent survey by AMBIMA (Associação Brasileira das Entidades dos Mercados Financeiro e de Capitais – which stands for the Brazilian Association of Financial and Capital Market Entities)[1] with 209 asset managers, released earlier this year, indicated that governance is the ESG aspect most observed by asset managers, with ethics and transparency being the factors most mentioned by them (92%).
Among the governance priorities, labor policies and relations (79%), data privacy and security (77%), board independence (75%), and board compensation (54%) were also mentioned.
The survey’s conclusion is encouraging, since pillar G is the core of ESG. Without good corporate governance, it is impossible to effectively implement social and environmental actions and align the company’s objectives with the creation of long-term value not only for its shareholders, but also for society in general.
Under the scope of governance, the rules and procedures to be observed in the decision making of companies are defined, from the elaboration of policies to the determination of rights and responsibilities among its different participants, including the board of directors, officers, shareholders, stakeholders, and the market in general. Thus, the increase in corporate governance standards is directly related to an increase in the transparency with which companies relate and communicate with the market and their shareholders, managers, employees, and partners in general.
It is no coincidence that over the past few years, companies with good corporate governance practices have outperformed the general market indexes in both the US and Brazil.
In this line, an S&P Global survey (2020)[2] on governance factors showed that companies rated below average in relation to good governance are more susceptible to mismanagement. Therefore, failures in governance policies may expose companies to unacceptable levels of risk, significantly compromising their business
Given the evolution of the Brazilian market on the subject, the simple disclosure of information on integrity, policies and codes of ethics and conduct is not enough. It is essential that companies realize the value that the effective adoption of good corporate governance practices generates in their relationships, in the management of their business, and in their perception before the market and the community in which they operate.
The text above was published Portuguese in the Legislação & Mercado section of Capital Aberto on February 22, 2022, and can be accessed through the link below:
https://legislacaoemercados.capitalaberto.com.br/o-papel-da-governanca-corporativa-na-agenda-esg/
On March 29th, 2022, the Brazilian Securities and Exchange Commission (“CVM“) published six new Resolutions, effective on May 2nd, 2022. The new rules introduce a new notice on corporates to be disclosed by publicly-held companies, in addition to contemplating revisions related to the Decree No. 10,139/2019, which provides for the consolidation of the interior normative acts to Decree issued by bodies and entities of the direct, autarchic and foundational federal public administration, which do not necessarily imply effective changes of merit, which are verified only in the Resolutions No. 79, 80 and 82.
Regarding the regulatory novelties, we highlight the new notice of corporate demands provided for in CVM Resolution No. 80/2022, which consolidated the rules regarding the registration and disclosure of periodic and occasional information by publicly-held companies. This announcement, which received public comments through Public Hearing 1/21, will make it mandatory to disclose certain judicial and arbitration claims based, in whole or in part, on corporate or securities legislation, or on the rules issued by CVM as of May 2, 2022.
From then on, it will be necessary to disclose the following information about the corporate claims in which the company, its shareholders or its managers are parties, in this capacity, and (i) that involve homogeneous diffuse, collective or individual rights or interests; or (ii) in which a decision can be rendered whose effects affect the legal sphere of the company or of other holders of securities issued by the issuer that are not parties to the process, such as action for annulment of corporate resolution, action for the administrator liability and action for the controlling shareholder liability:
We emphasize that companies may not use the confidentially clause provided for in the regulations of arbitration chambers in order to fail to comply with the disclosure of the notice. Therefore, CVM was categorical, in the notice of Public Hearing 1/21, in stating that chambers regulations cannot contravene legal and regulatory provisions, since the disclosure obligations set forth in CVM Resolution No. 80/2022 reflect central concerns of the capital market rules and cannot be excluded by arbitration agreements, arbitration chamber regulations or by any other agreement.
More information regarding the new CVM Resolutions can be found in the link below:
https://www.gov.br/cvm/pt-br/assuntos/noticias/cvm-publica-6-novas-resolucoes
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