1. As is well known by shareholders of publicly held companies, the corporate legislation and the bureaucracy to validate foreign documents have created, in practical terms, obstacles to their participation in general meetings, as, in general, the lapse between the call notice and the date the meeting is not enough for the shareholders (mainly those not resident in Brazil) to take the necessary measures to obtain the corporate authorizations and/or appoint attorneys-in-fact to attend these events. Moreover, the legal obligation to hold the meeting in the building where the company's headquarters are located prevents many shareholders from attending the meetings, depending on where the company is headquartered.
2. In order to facilitate and to promote the participation of shareholders in publicly held companies' meetings, the Brazilian Securities and Exchange Commission ("CVM") enacted CVM Instruction 561/2015, which regulates, among other topics, the registration of the remote attendance and vote at shareholders' meetings, which will be deemed valid for the effects of Law 6404/76.
3. Instead of imposing a sophisticated mechanism to register the attendance and votes of shareholders, the government agency preferred to adopt a simpler system and to allow shareholders to hand in to the publicly held company, to the custodian or to the depositary institution of the shares a remote voting form. Said form shall be made available to the shareholders at least 30 days in advance and handed in by the shareholders to the company, the custodian or the depositary institution of the shares up to seven (7) days before the meeting (except if more time is granted to the shareholders).
4. The new system will be mandatory for shareholders' annual meetings and whenever there is election for the fiscal council and/or the board of directors (in the event of vacancy of most of the positions in the board of directors, or vacancy of a director elected by multiple votes, or to fill in vacancies to be voted separately); and it will be optional for shareholders' extraordinary meetings.
5. In addition to the remote voting form, the company may make an electronic system available to send such form or to allow the remote participation in the shareholders' meeting, provided that such system should ensure, at least, that the attendance of shareholders and their respective votes are registered, without prejudice to the company's right to electronically transmit the meeting by a broad means of communication, such as the Internet.
6. It should be noted (i) that the shareholders have the right to include in the form candidates to the board of directors and to the fiscal council, as well as resolution proposals for the shareholders' meeting, provided that they hold enough shares for doing so, and (ii) that the filling in instructions or the remote voting forms must be stored for at least 5 years by the company, the depositary institution of the shares and the custodian.
7. The new rules will come into force, in 2016, for publicly held companies that have a type or a class of shares that integrates the IBrX – 100 or IBOVESPA, and, in 2017, for all publicly held companies registered under "category A".
8. We believe the new measures will allow more participation and activism by the shareholders in publicly held companies and, consequently, an evolution of the capital market.
* Mauro Takahashi Mori and Mirella da Costa Andreola de Almeida are members of the corporate area of Machado Associados.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.