On April 17, 2020, the Brazilian Securities and Exchange Commission (“CVM”) issued CVM Instruction 622 (“ICVM 622”), which partially amends CVM Instruction 481, issued on December 17, 2009 (“ICVM 481”), and provides for the manner in which publicly-held companies shall hold general digital meetings. This innovation is in line with other regulatory amendments made by the authority, as well as with the Provisional Measure 931, issued on March 30, 2020, due to the unfolding of the new coronavirus pandemic (Covid-19).
Under the terms of ICVM 622, the general meetings may be (i) exclusively digital, if the shareholders may only participate and vote through electronic systems, or (ii) partially digital, if the shareholders may participate and vote in person or remotely, in both cases without prejudice to the use of the ballot paper to exercise voting rights. The exclusively digital meetings shall be deemed to be held at the company’s headquarters and the partially digital meetings may, exceptionally and upon justification presented in the call notice, take place outside the company’s headquarters, including in another municipality.
In the event the meeting is held partially digital or exclusively digital, the call notice shall contain, in addition to the information required in article 124 of Law 6404 of December 15, 1976 and ICVM 481, information detailing the rules and procedures on how shareholders may participate and vote remotely, including information necessary and sufficient for the shareholders to access and use the electronic system.
The electronic system made available for remote participation in the meeting shall ensure the registration of the presence of shareholders and their respective votes, as well as the possibility of the shareholder: (i) to simply participate in the meeting, having or not sent a ballot paper; or (ii) to participate and vote in the meeting. In addition, the company shall guarantee at least: (i) the possibility of simultaneous demonstration and access to documents presented during the meeting that have not been previously made available; (ii) the meetings’ full record; and (iii) the possibility of communication between shareholders.
The company may request that shareholders who intend to participate through the electronic system to deposit the documents required in the call notice with at least 2 days prior to the meeting. In addition, shall be admissible the presentation of such documents by means of digital protocol.
For the purpose of the meeting minutes, shareholders who have cast their votes by means of the ballot paper and/or who have registered their presence in the electronic system for remote participation shall be considered as attending of the meeting, and such registration shall be made by the meetings’ president and secretary, whose signatures may be made by means of a digital certification or by other means that guarantee their authorship and integrity in a manner compatible with that adopted by the company for the holding of the meeting.
It should be noted that the meetings convened by the publicly-held companies prior to the publication of ICVM 622 may be held partially digital or exclusively digital, even if the call notice of the meeting did not include the information required by ICVM 622, provided that the company discloses such information through a material fact with at least 5 days prior to the meeting. The companies that convened meetings to be held until April 30, 2020, shall disclose the material fact with only 1 day prior to the meeting.
The Capital Markets, Corporate, Contracts and M&A team remains at your disposal to provide any additional clarifications deemed necessary. Check the ICVM 622 here.