Companies that want to access the capital markets or gain visibility as public companies should begin preparing the organization and its documentation in advance of the start of the registration process per se in order to make it more efficient and less costly.
The objective of this article is to point out some of the challenges of this journey, which mainly involve financial and corporate issues. The idea, therefore, is not to list all the requirements and steps necessary to obtain registration as a public company.
In addition to preliminary issues, such as verifying the need to carrying out a corporate reorganization prior to filing or entering into a shareholders' agreement, one of the relevant topics is the financial statements.
The Brazilian Securities and Exchange Commission (CVM) requires the presentation of financial statements that meet all the requirements of the Brazilian Corporations Law (Law No. 6,404/76) and the CVM’s regulations specially prepared for the purposes of the registration application. The document must be audited and contain an unmodified audit opinion. Even for those cases where the company's financial statements have already been audited, an additional review will be required in order to include the level of detail required by the CVM’s regulations, such as opening revenue by segments and details on transactions with related parties. This process demands work, time, and back and forth with the independent auditors.
Another relevant topic involves the company's governance. At the least, the by-laws should be adapted in order to contain the provisions of the laws and regulations governing corporations applicable to publicly-held companies, such as the mandatory establishment of a board of directors. There should also be minimum provisions in the by-laws related to the trading segment chosen for listing the company and its shares in B3 S.A. - Brasil, Bolsa, Balcão, if applicable.
The company must have at least one policy for disclosure of material acts and facts. For those who will also apply for listing on B3, several other policies are required, especially in Novo Mercado, the trading segment with the most demanding rules. These policies include risk management, related party transactions, and compensation.
The reference form is an extensive document that contains information on activities, risks, governance, compensation of managers, and the financial situation of the company involving, in general, the last three fiscal years. The document should be prepared with care because, in addition to being evaluated by the regulator in order to authorize the registration, the CEO and the officer of investor relations are responsible for its content.
In the reference form, the company must include all material risks involved in its business, including industry, regulatory, and market risks, without mitigation, that is, without mitigating or justifying the risk. Although it appears to be negative information, disclosure of the risks to which the company is exposed protects the organization and its managers from future claims should any of the scenarios reported materialize.
Finally, as important as the planning for the application for registration as a publicly-held company is the development of a culture and the preparation of personnel for routine operation after the granting of registration by the CVM. After all, as of that moment the company will be obliged to disclose various documents to the market within the time limits and in the manner established in the regulations, observing specific rules of greater complexity that were not a part of its day to day. Failure to comply with the disclosure rules and obligations for public companies subject the organization and its officers and directors to penalties, and this can be avoided with good preparation.