The National Department of Business Registration and Integration (DREI), of the Ministry of Economy, published on April 15 Normative Instruction No. 79 regarding participation in and remote voting at meetings and assemblies of privately-held corporations, limited liability companies, and cooperatives, in response to the crisis caused by covid-19.
IN No. 79 regulates the holding of meetings and assemblies by digital means - when shareholders, partners, or associates can only participate and vote at a distance (in which case they will not take place in any physical location), or even in a semi-in-person manner - in which participation and voting are allowed in person, at the physical location of the meeting, and also at a distance. Meetings held fully in-person are not subject to this rule.
Participation and remote voting may take place by sending a ballot paper remotely and/or through an electronic system accessible to all partners, shareholders, or associates, which guarantees, among other requirements, the security, reliability, and transparency of the meeting, as well as registration of the presence of the partners, shareholders, or associates.
The call notice shall state, prominently, that the meeting or assembly shall be semi-in-person or digital, as the case may be, detailing how shareholders, partners, or members may participate and vote remotely, and listing the documents required for them, or their representatives, to be admitted.
Related documents must be made available in advance by secure digital means, observing the disclosure mechanisms provided for by law for each type of company. They can also be presented in summary form in the call notice, indicating the website where the complete information will be available.
The ballot paper, in turn, shall be made available by the company in a version for printing and completion by hand, containing: all matters on the agenda; guidelines on how to send it back to the company; indication of the documents that must accompany it in order to verify the identity of the shareholder, partner, associate, or any representative; and guidelines on the formalities required for the vote to be considered valid. The ballot must be sent by the company/company/cooperative on the same date as publication of the call notice and returned at least five days before the meeting. The document may even be rectified and sent back, provided that the deadline is respected. This submission does not prevent the partner or associate from participating and voting at the meeting, in which case the document sent shall be disregarded.
The company may hire third parties to manage, on its behalf, the processing of information at meetings or assemblies, but it will be responsible for filing the documents associated with the event and recording it in its entirety, keeping these records for the period in which it is possible to request annulment.
In the specific case of cooperatives, the electronic system adopted shall ensure the anonymous nature of the vote on those matters where the bylaws provide for secret voting.
The minutes of the assemblies or meetings shall indicate the model adopted and the manner in which participation and remote voting were permitted. The chairman and secretary shall sign it and consolidate the attendance list in a single document. The same signature and attendance certification procedure may be used for the respective corporate books. In the case of digital minutes, the signatures of the chairman and secretary shall be made by means of a digital certificate issued by an entity accredited by ICP-Brasil or any other means of proving the authorship and integrity of documents in electronic form. Means shall be provided for the minutes to be printed on paper, legibly and at any time by any partners. The chairman or secretary shall expressly declare that all the requirements for holding the meeting have been met, especially those set forth in IN No. 79.
In-person meetings or assemblies already called and not yet held due to restrictions resulting from the covid-19 pandemic may take place semi-in-person or digitally, provided that all shareholders, partners, or associates are present or expressly declare their agreement to such procedure.