On April 15, 2020, a Normative Instruction No. 79 from the National Department of Business Registration and Integration (“IN 79”) was published, which regulates the participation and remote voting in closed, limited and cooperative companies’ meetings and assemblies, in compliance with the provisions of Provisional Measure No. 931, of March 30, 2020, qualified by Law No. 10,406, of January 10, 2002 – Civil Code, by Law No. 5,764, of December 16, 1971, and Law No. 6,404, of December 15, 1976.
Initially, IN 79 provides for two modalities for holding meetings and assemblies, namely:
Such meetings and digital assemblies, for legal purposes, will be considered as if held at the company’s headquarters, emphasizing that semi-presential or digital meetings and assemblies must obey the rules pertaining to the respective corporate type, as well as the rules of the contract or bylaws of the company regarding the call, installation and resolution.
For deliberations and remote voting by shareholders, partners or associates, it is established that this may occur by sending a remote voting ballot and / or by means of an electronic system, according to the availability of the platform chosen to hold the conclave.
With regard to the summons, it is worth mentioning that the summons instrument should highlight, in particular, that the meeting or assembly will be semi-presence or digital, as the case may be, detailing how shareholders, partners or associates can participate and vote from a distance, as well how it should list the documents required for shareholders, partners or associates to be admitted to the semi-presential or digital meeting or assembly.
To this end, society must adopt an accessible system and technology so that all shareholders, partners or associates participate and vote at a distance in the semi-presential or digital meeting or meeting.
For the purposes of installation, the shareholder, partner or associate will be considered present at the meeting or semi-presential or digital assembly:
According to IN 79, it is necessary that the electronic system adopted by the company to hold the semi-presential meeting or assembly guarantees the following::
In addition, if the company chooses to participate / vote by means of a remote voting ballot, it must be made available in a printable version and can be filled in manually, through an electronic system, to the shareholder, partner or associate on the date of publication of the first call for the conclave to which it refers, as well as to be returned to the company at least 5 (five) days before the date of its realization, and must contain:
The sending or not of a remote ballot does not prevent the shareholder, partner or associate from attending the respective semi-presence or digital meeting or assembly and exercising their right to participate and vote during the conclave, in which case the ballot sent will be disregarded.
The company must keep on file all documents related to the meeting or semi-presential or digital assembly, as well as its full recording, for the term applicable to the action aimed at annulling it.
For the purposes of registering the act, the copy or certificate of the minutes of the meeting or semi-presence or digital meeting must fulfill the same legal requirements contained in the Registration Manuals approved by the DREI Normative Instruction No. 38, of 2017, in what does not conflict with IN 79 .
Finally, without prejudice to the other provisions contained in said IN 79, it is established that meetings or face-to-face assemblies already convened and not yet held, due to the restrictions resulting from the Coronavirus pandemic (Covid-19), may be held in a semi-presential manner. or digital, provided that all shareholders, partners or associates are present, in the manner established by IN 79, or expressly declare their agreement.
Click here to read Normative Instruction No. 79 of the National Department of Business Registration and Integration, of April 15, 2020.