The Securities and Exchange Commission of Brazil (CVM) published, on February 24 of this year, the Annual Circular Letter 2022 CVM/SEP, which consolidates the guidelines of the Company Relations Bureau (SEP) to be observed by listed, foreign, and incentivized companies in complying with their regulatory obligations.
With the purpose of clarifying important issues regarding the procedures adopted in the day to day of the companies and in view of the recent changes in the law and regulations in force, the circular brings in updates on topics related to:
- Changing rules for mandatory publications required by Law 6,404/76, as amended (Brazilian Corporations Law);
- Call notices for general meetings;
- Proof of uninterrupted ownership of shares for separate election of board members;
- Explanatory notes and management report;
- Completing the reference form;
- Collection of inspection fee;
- Appeal and payment of punitive fines;
- Digital signature; and
Changing rules for mandatory publications
On January 1st of this year, Law 13,818/19, which amended the Brazilian Corporations Law, came into effect. The changes exempt companies from mandatory publication in the Official Gazette and allow corporate acts and financial statements to be published in summary form.
Since the exclusion of the need for publication in the Official Gazette is a disclosure change resulting from a change in the law itself, the SEP believes it is not necessary to observe paragraph 3 of article 289 of the Brazilian Corporations Law, which provides that any change of newspaper must be preceded by a notice to shareholders in the excerpt of the minutes of the ordinary general meeting. Companies need only update their registration form and issue a notice to shareholders to communicate the decision.
Regarding summarized publications, we point out that the financial statements have a minimum content determined in subsection II of article 289 of the Brazilian Corporations Law. In addition, it is important that companies observe CVM Guidance Opinion 39, of December 20, 2021, which details the minimum content of summarized financial statements and indicates the warnings that must be included in the publication.
As far as the other publications, such as the management report, public notices, and minutes are concerned, there is no minimum mandatory content. SEP warns that companies must be careful not to omit or disclose incomplete or inaccurate material information, so as not to mislead investors. The summarized publications must contain a notice that the information provided has been summarized, in addition to indicating the electronic addresses where the documents can be accessed in full (website of a large circulation newspaper, of the CVM, and of B3, if the company is listed).
For more information about the new rules on publications required by the Brazilian Corporations Law, including for privately-held companies, and the guidelines set out in the circular in this regard, we suggest reading this article published in our Legal Intelligence portal.
Call notices for general meetings
Although the change in the Brazilian Corporations Law allows for general meetings to be called at least 21 days in advance for first call, and 8 days in advance for second call, SEP advises companies to continue to adopt the 30-day advance notice, in order to encourage investor participation.
With this same purpose and with special attention to foreign investors, the SEP recommended that call notices highlight the importance of multiple vote requests being made in advance by shareholders; it also recommended, for companies with significant participation of foreign investors, that documents and information that will serve as support for the meetings be disclosed simultaneously in Portuguese and English.
Proof of uninterrupted ownership of shares for separate election of board members
Under the terms of article 141, paragraph 6, of the Brazilian Corporations Law, only those shareholders who prove uninterrupted ownership of the required shareholding during the minimum period of three months prior to the general meeting may exercise the right to elect a separate member of the board of directors.
Although it is not an obligation attributable to the shareholder by the Brazilian Corporations Law, the SEP, aiming to have companies encourage the participation of shareholders in their meetings and not create formalities that may burden or hinder the exercise of rights by shareholders, believes that:
- the best practice is that companies include in the set of services provided by the bookkeeping agents the control of the confirmation of the uninterrupted ownership of the shares in relation to all items involving the matter (request of separate election and choice of candidates), for the bookkeeping agent to forward to the issuer the information that includes an evaluation of this eligibility requirement;
- in the case of sending a remote voting ballot to the bookkeeper or custodian, the requirement to send documentation to prove uninterrupted ownership of the shares seems to create an unnecessary and onerous formality for the shareholder; and
- as to ballot papers sent directly to the company, in compliance with the provisions of article 21-F, paragraph 1, subsection IV, of CVM Instruction 481, it is incumbent on management to define procedures and formalities that are indispensable to guarantee the integrity of the voting process via ballot paper; any document requirements should not represent unnecessary obstacles to the shareholders' participation in the meetings.
Explanatory notes and management report
In this version of the circular letter, the SEP presented a study on financial statement requirements in applications for publicly-held company registration. The most common requirements were as follows:
- deficient disclosure of accounting policies applied to the company, mainly when it is found that the company mostly stopped at transcribing or paraphrasing the accounting standards, without observing CPC 23 and OCPC 07;
- disclosure of information regarding the relationship with the independent auditors, according to the provisions of article 31 of CVM Instruction 308/99 (currently CVM Resolution 23/21), in the management report;
- aspects concerning the loss of recoverable value of assets ( impairment test), pursuant to item 134 of CPC 01 (R1) and guidelines of item 3 of Circular Letter/CVM/SNC/SEP/No. 01/20);
- disclosure of the reconciliation of information of a non-accounting nature (Ebitda or adjusted Ebitda) in accordance with CVM Instruction 527/12; and taxes on profits, under the terms provided for in CVM Instruction 371/02.
SEP warns already registered companies and issuers in the process of registration to be attentive to correctly disclose the above items in the explanatory notes of their financial statements and management report, as the case may be.
Completing the reference form
Regarding the filing of the FY 2021 reference form, the main additional guidelines are:
- Item 12.6 "e” - Participation of members of the board of directors and the audit committee in meetings held by the respective body: in this item, the information must refer to the participation of officers and directors in meetings held after taking office in their respective positions. Thus, this information should be filled in based on their participation in the meetings that took place after their last election.
- Item 15 - It is not necessary to update the reference form in the event of a change in the number of treasury shares resulting from the execution of a buyback program. However, should the number of shares acquired during the program represent a change in the shareholding levels of 5%, 10%, 15%, and so on, due to the possibility of variation in the percentage of shareholders, we recommend that item 15.1/2 (treasury shares) of the reference form be updated.
- Item 16.2 - Related party transactions: the SEP has reinforced the need to make clear the purpose of related party transactions and the company's interest in maintaining them. In addition, the technical area clarified that, regarding the existing balance of the transactions with related parties (letter "g"), the value stated in this field must correspond to the remainder of the contract (the part that belongs to the related party). The completion of the field "Amount corresponding to the interest of such related party in the deal, if it can be gauged" should take into account that, generally, if the deal is entered directly with the related party, its interest in the deal is 100% of the amount involved, so that this value is repeated. In some cases, the related party may be a "co-interested party" if, for example, it owns part of the leased property. In this case, they should only enter the amount of their interest in the transaction.
Due to the enactment of CVM Resolution 59, which comes into effect in early 2023, the reference form will undergo several changes in its format and structure. We suggest, as a way of preparing for what is to come, reading this article published in our Legal Intelligence portal.
Collection of inspection fee
Another important point dealt with in the circular concerns the CVM inspection fees, which underwent changes with the enactment of Executive Order 1,072/21.
In general terms, there was an increase in the number of events in which the fee is due, such as when an issuer applies for initial registration and when restricted efforts offerings are carried out without CVM registration. The frequency of the payment of the issuer registration fee, which was due quarterly, has been changed, as has the cap on the fee charged for public offerings of securities.
Below is a summary of the fees:
|Fee for maintenance of issuer registration||Fee upon initial issuer registration application*||Fee on the occasion of a public offering of securities|
| ||According to the issuer's net equity on December 31 of the prior year, in accordance with Annex I of Law 7,940/89.||25% of the fee for the maintenance of the issuer registration, based on the equity on December 31 of the prior year. For issuers incorporated later, the fee must be collected at the lowest amount provided for in the range applicable to the taxpayer, pursuant to Annex I of Law 7,940/89.|| |
0.03% on the total value of the offer, including base, additional, and supplementary lots.
When there is bookbuilding, collection based on the estimate of the total value considering base, additional, and supplementary offers.
Applied on the amount actually placed.
| || |
(1) Due by the last business day of the first ten-day period of May of each year; or
(2) within 30 days after granting the issuer registration request.
|Before the issuer registration application is filed.|| |
Before the filing of the offer registration request in a single payment covering the total amount of the offering.
When each one of the closing communications of the offering is sent to the CVM.
* Due only when there is no concomitant public offering.
Appeal and payment of punitive fines
Article 16 of CVM Resolution 47/21 states that the decision to impose punitive fines may be appealed to the review board, through the CVMWeb system, within ten days from the date of acknowledgement of receipt of the letter communicating the fine.
The due date of the fine, however, does not change due to the filing of an appeal, since it does not operate as supersedeas. Therefore, the company may choose to: (i) pay the fine on the due date and, if the appeal is granted, request reimbursement from the CVM; or (ii) not pay the fine and, if the appeal is not granted, pay the fine plus charges due to the delay in payment.
On this topic, the SEP also clarified that, as the punitive fines are not to be confused with the penalties provided for in the head paragraph and subsections I to VIII of article 11 of Law 6,385/76, as amended, it is not possible to transform a punitive fine into a warning.
In line with Decree 10,543/20, the circular also contains guidelines regarding the electronic signature of documents that must be forwarded by the CVM's digital filing, which must have an advanced or qualified signature (silver or gold level in the Digital Citizenship Platform.GOV.BR) in the following cases:
- application for registration as a securities issuer, in category A, under CVM Resolution 809/19;
- filing of an appeal from a fine;
- request for confidential treatment of information/documents provided in order to meet requirements made under CVM Instruction 480/09, as amended (article 56, paragraph 3);
- consultations with requests for confidential treatment;
- request for exception to the immediate disclosure of a material fact (article 7 of CVM Resolution 44/21); and
- execution of a consent order with the CVM.
For clarification purposes, advanced signature requires the signatory to use a digital certificate, but this does not necessarily need to be issued by ICP-Brasil (Brazilian Public Keys Infrastructure). An advanced electronic signature may be issued by another means of proving authorship and integrity of documents in electronic form, provided that it is admitted by the parties as valid or accepted by the person to against whom the document is submitted, with the following features:
- be uniquely associated with the signer;
- use data for the creation of electronic signatures whose signatory can, with a high level of confidence, operate under its exclusive control; and
- be related to the data associated with it so that any subsequent modification is detectable. Qualified signatures, on the other hand, necessarily involve the use of a digital certificate issued by ICP-Brasil.
More information about the use of signatures in the federal public administration can be found at the CVM’s website .
The CVM reinforces in the circular letter that queries from issuers forwarded directly to the e-mail addresses of management or the SEP will only be answered by e-mail if they involve low complexity issues that do not require the involvement of the managers or the superintendent. Other queries must be forwarded via digital protocol so that a specific administrative proceeding can be opened on the subject.