June 2023

_the june│2023 edition of our Newsletter has the following highlight:

– Highlights of the proposal to amend the Brazilian Corporate Law

– Decree No. 11,563 regulates the Brazilian Legal Framework of Crypto Assets

 

_ Highlights of the proposal to amend the Brazilian Corporate Law

 

The Bill 2.925/23 to amend Law No. 6,404/1976, the Brazilian Corporate Law, and Law 6,385/1976, which created the Brazilian Securities and Exchange Commission (“CVM“), proposed by the Executive Branch, through the Ministry of Finance, was submitted for approval by the National Congress on June 2, 2023 (“PL 2,925“). The purpose of the proposed changes is to include greater protection for minority shareholders against losses caused by controlling shareholders or managers of listed companies.

 

Among the changes proposed in PL 2.925, the following stand out:

 

  • Expansion of CVM’s competences: in order to create new means of instruction of administrative processes, such as, among others, the performance of inspections in the establishments of investigated companies and the request, through the judicial power, of search warrants and seizure of documents and information.

 

  • Civil Liability: for losses suffered by investors as a result of action or omission of companies in violation of the legislation and regulation of the securities market, subject to proof of guilt or intent, applicable to:
    • Managers;
    • Controlling shareholders, when the legislation or regulation directly imposes on them the duty to comply with the infringed norm or when they contribute to the practice with managers (joint and several liability);
    • Offerors and the coordinators of public offerings for the distribution of securities and offerors and intermediaries of public offerings for the acquisition of securities.

 

  • Class Actions for Civil Liability: possibility for legitimate investors to bring class actions for civil liability.

 

  • Arbitration: the by-laws, regulations, deeds and instruments for the issuance of securities may provide that the liability action shall be decided by arbitration, provided that they are public, and CVM may regulate the limits of this public character, including cases in which confidentiality will be admitted.

 

  • Termination of Liability Law Suit: inclusion of the authorization and termination of a liability law suit, which are treated by articles 159 and 246 of the Brazilian Corporate Law, as being within the competence of Shareholders’ Meetins. Even if approved, the termination shall not take effect if shareholders representing ten percent of the voting capital decide to reject it.

 

  • Restriction to Vote: managers may not vote in resolutions regarding the exemption from liability of managers and members of the fiscal council and on the filing of a liability law suit.

 

  • Exemption from Liability: exclusion of automatic exemption from liability for managers and members of the fiscal council after the approval of financial statements and management accounts.

 

  • Legitimacy for the Filing of a Liability Law Suit: when shareholders, within the shareholder’s meeting, decide not to promote the law suit, change in the hypothesis of legitimacy by shareholders of listed companies.

 

  • Award in Liability Law Suits in case of Conviction: in case of conviction of managers or controlling shareholder, an award of 20% on the total amount of the indemnity shall be paid to the plaintiff.

 

PL 2.925 and its status can be accessed in Portuguese through the link below:

https://www.camara.leg.br/proposicoesWeb/fichadetramitacao?idProposicao=2367421

 

_ Decree No. 11,563 regulates the Brazilian Legal Framework of Crypto Assets

 

On June 14, 2023, Decree No. 11,563 was published, which regulates Law No. 14,478 of September 21, 2022, also known as the Brazilian Legal Framework of Crypto Assets (“Decree“). This Decree establishes the guidelines for the provision of virtual asset services and assigns to the Central Bank of Brazil the responsibility of regulating the crypto asset market.

 

Since the entry into force of the Decree on June 20, 2023, the Brazilian Central Bank is competent to:

 

  • regulate the provision of virtual asset services, in compliance with the guidelines of the Brazilian Legal Framework for Crypto Assets;
  • regulate, authorize, and supervise virtual asset service providers; and
  • deliberate on the other hypotheses established in the Brazilian Legal Framework of Crypto Assets, except with respect to the National Registry of Politically Exposed Persons.

 

The Decree does not apply to assets representing securities which shall remain under the jurisdiction of CVM, subject to Law No. 6,385/1976.

 

The Decree can be accessed in Portuguese through the link below:

http://www.planalto.gov.br/ccivil_03/_ato2023-2026/2023/decreto/D11563.htm

Concessão de florestas pode impulsionar créditos de carbono

Lei 14.590/23 amplia rol de atividades permitidas a concessionários

Posted in: Uncategorized

Revista do Advogado 158

Fusões e Aquisições – Formatos usuais de preço em operações de M&A e seus efeitos para as demais condições contratuais.

Posted in: Uncategorized

June 2022

_the june│2022 edition of our Newsletter has the following highlight:

– The win-win situation of issuing and selling carbon credits

– CVM resolution on corporate demands benefits minority shareholders

_The win-win situation of issuing and selling carbon credits

Despite a seemingly recent topic, discussions involving global warming and climate change have been part of our daily lives for more than 30 years since the Intergovernmental Panel on Climate Change (IPCC), established in 1990.

Over time, terms like low carbon economy and carbon credits were allowed to be explored as new actors and players, such as the market and investors, recognized the magnitude of the challenge and opportunities involved in reducing the carbon footprint and the environment protection.

Currently, governments, companies and investors can contribute to the reduction of GreenHouse Gases (GHG) emissions that cause global warming through investing in carbon projects or through the purchase of final credits, called carbon credits and/or verified emission reductions (RVE), thus reducing GHG emissions into the atmosphere.

RVE, or carbon credits, represent, per unit, one ton of carbon dioxide (CO2), or the equivalent amount of another greenhouse gas, not released into the atmosphere. Once generated and certified, these credits can be traded on the voluntary carbon market, where there are numerous opportunities to buy and sell the credits, always aiming to reduce GHG emissions.

Carbon offset projects

The COP26 (26th session of the Conference of the Parties), held in Glasgow, UK, in November 2021, was an important step towards the voluntary carbon market as it regulated international transactions, which facilitates the purchase of credits generated in a country by companies and people from other nations.

This regulation made room for a promising market, estimated at between 30 billion and 50 billion dollars by 2030, in projects that generate carbon credits. Brazil is able to be responsible for 20% of the world market, the equivalent of 6 billion dollars (or about 30 billion reais) by 2030.

Currently, there are many investors interested in significantly providing funds to carbon projects, which represents a great opportunity for owners of areas suitable for carrying out such projects. They will be able to increase their land value and still receive a percentage of the results without the often prohibitive amount needed to finance a carbon project.

For rural producers, carbon credits represent the chance to generate green income and real estate appreciation combined with the preservation of the environment and the fight against climate change, and their exploitation is increasingly accessible to all interested parties.

Furthermore, with Law No. 14.119/21, which regulated the payment for environmental services, the income received for environmental services that carbon projects can generate will not be part of the basis for calculation of the Income Tax, Corporate Tax, contribution to the Social Integration Program and to the Public Servants’ Fund Financing Program (PIS/Pasep) and Contribution for Social Security Financing (Cofins), making the carbon market even more attractive.

With technical advances and investments made in the area, operational aspects related to the generation of carbon credits were also improved. As a result, more people can benefit from this market. It is not only the large landowners of areas with untouched native forest that can join the projects, but also the farmers and ranchers who own smaller areas.

Investors today can count on Redd+ (Reduced Emissions from Deforestation and Degradation) projects, which conserve existing standing forests, avoiding the release of carbon into the atmosphere; ARR (Afforestation, Reforestation and Revegetation), which carry out the afforestation or reforestation of areas, so that the trees capture, as they grow, carbon from the atmosphere; ALM (Agricultural Land Management), which, from the professional management of agriculture or livestock, manages to both reduce GHG emissions into the atmosphere as well as capture these gases from the atmosphere, in both cases keeping them in the soil.

Brazil has great potential for all these modalities, either because it has a huge forest asset in different biomes, such as the Amazon or the Pantanal, or because of its large areas suitable for reforestation, besides the large agricultural market that it holds. Given this scenario, how can producers in the agricultural sector and other investors enter the brave new world of the carbon market?

Steps for the issue of carbon credits

The issue of carbon credits requires the fulfillment of several steps that range from the elaboration of a Redd+, ARR or ALM project in an area, formal contracting between the owner of the area and the company that will execute the project, through monitoring of the area, followed by a thorough examination by a certifier that will attest that the project has generated a certain amount of carbon credits by capturing or preventing the release of GHGs into the atmosphere.

Once the credits are certified and registered, the sale stage begins through a carbon credit assignment agreement to an interested party who can “retire” them on their behalf, which means that they will offset their emissions with the carbon credits purchased or simply keep them in their possession to sell at another time.

For the smooth progress of all these stages, there are now companies and law firms ready to advise rural producers in areas suitable for the development of carbon projects. These specialized companies are responsible for the feasibility study, preparation of the credit issuance report, technical proposal, validation, monitoring, certification of credits and their issuance, as well as intermediating the search for buyers. Law firms, on the other hand, take care of aspects related to land tenure in the area where the project is intended to be carried out and the contracts for the purchase and sale of credits.

To have access to the promising carbon market, the holder or owner of the credits shall have a title or legitimate possession, have their Rural Property Registration Certificate (CCIR), the Georeferencing certification by The National Institute for Colonization and Agrarian Reform (SIGEF) legally endorsed and when applicable, the Environmental Rural Registry (CAR), the Environmental Declaratory Act (ADA) and the regular payment of the Rural Property Tax (ITR).

Another important contribution of legal advice concerns contractual commitments, since carbon projects, although they may yield credits in five-year “harvests”, are generally long-term projects whose contracts can reach or exceed 30 years of validity. Thus, it is essential that the parties involved are well advised so that they do not have their expectations frustrated.

The carbon credit market is booming and there is an increasing social and governmental pressure for landowners to comply with environmental requirements and reduce GHG emissions, at the same time as the search for carbon credits by institutions that wish to neutralize their emissions only increase. It is essential to be prepared to enter this promising market.

The text above was published in Portuguese in the Legislação & Mercado section of Capital Aberto on April 26th, and can be accessed through the link below:

https://legislacaoemercados.capitalaberto.com.br/o-ganha-ganha-da-emissao-e-venda-de-creditos-de-carbono/

_CVM resolution on corporate lawsuits benefits minority shareholders

The Brazilian Securities and Exchange Commission (CVM) introduced a new regulation to improve investors and minority shareholders’ access to information, through which listed companies shall disclose information about lawsuits or arbitrations based, in whole or in part, on corporate or securities legislation, or on the rules issued by CVM,  in which the company itself, its shareholders or its managers are involved as a party.

The regulation determines rules for which information must be disclosed and the deadlines vary according to which side the company, shareholder or manager is (plaintiff’s or defendant’s). The disclosure of the communication on corporate lawsuited shall be made through CVM’s electronic system and the company website.

A controversial point in the new communication is confidentiality: the regulation provides that only confidentiality established by law shall be respected, therefore, arbitration confidentiality clauses, as a rule, may not be used as an excuse for restricting the disclosure of such information.

The resolution is part of an effort made by the CVM together with other organization to improve the mechanisms of protection of investors and minority shareholders, which aims to elevate the Brazilian legal system closer to the ones found in countries with more developed markets.

We contributed on the subject in the article “Resolução da CVM sobre demandas societárias beneficia minoritários” published in Portuguese in the Legislação & Mercado section of Capital Aberto on June, 2nd, 2022, which can be accessed through the following link:

Resolução da CVM sobre demandas societárias beneficia minoritários

June 2020

_the June│2020 edition of our Newsletter has the following highlights:

– COVID-19: Law regarding private legal relations in the pandemic period published

– Brazilian Department of Business Registration edits Normative Instruction which improves registrations before Boards of Trade

 

On June 12th, 2020, Law No. 14.010 was published (“Law No. 14.010/20”), which sets forth an emergency and transitional legal regime regarding private legal relations during the COVID-19 pandemic.

 

The original text, initially presented to the Brazilian Senate on March 31st, 2020, as Legislative Proposal No. 1.179, was prepared with the assistance of several professors from the best law schools in the country and coordinated by Brazilian Supreme Court Chief, Minister Dias Toffoli. After several discussions in the two legislative houses, the final text was sanctioned by the Brazilian President on June 10th, 2020, in which some of the provision were vetoed,.

 

Law No. 14.010/20 suspended the statute of limitations and for the acquisition of property by adverse possession from June 12, 2020 to October 30, 2020 and, in addition, extended the deadline for opening inventory and legal partition procedures of successions commencing from February to October, 2020. Also, within the civil sphere, the application of article 49 of the Brazilian Consumer Defense Code, which sets forth consumer’s right of regret, in case of home delivery of perishable or immediate consumption products and medicines, is suspended until October 30, 2020, as well as regular arrests for alimony debtors, which shall only face house-arrests.

 

As for legal persons under private law, it is worth mentioning that, after several changes in its text and the presidential vetoes, the final version of Law No. 14.010/20 may create different understandings regarding the deadline for holding shareholders’ meetings. However, through an interpretation of the law with the vetoes explanations, the term of October 30, 2020 established in its article 5 refers exclusively to associations and foundations meetings. The deadline for shareholders’ meetings of limited liability companies, corporations and cooperatives remains the one provided for by Provisional Measure No. 931/2020 (i.e. for companies whose fiscal year ends between December 31, 2019 and March 31, 2020, the shareholders’ meetings shall be held within 7 months from the end of the fiscal year).

 

In the competition law field, it is suspended until October 30, 2020 the possibility of considering the sale of goods or rendering of services unjustifiably below cost price as an infringement of Brazilian Competition Law (article 36, paragraph 3, item XV of Brazilian Law 12.529/11), as well as to partially or totally cease the company’s activities without just cause (art. 36, §3, item XVII of Brazilian Law 12.529/11), and the classification of entering into an association, consortium or joint venture agreement between two or more companies as an act of concentration is ineffective until the aforementioned date (art. 90, item IV of Brazilian Law 12.529/11). However, the suspension does not rule out the possibility of subsequent analysis of the concentration act or of investigations on agreements that are not necessary to combat or mitigate the consequences of the coronavirus pandemic.

 

Finally, with respect to the Brazilian Data Protection Law (Law No. 13.709/2018), Law No. 14.010/20 postponed the entry into force regarding the application of administrative sanctions to August 1, 2021. The entry into force regarding the other articles is expected, for now, for May 3, 2021, according to Provisional Measure No. 959/2020 (still pending appreciation by Congress).

 

Law No. 14.010/2020 can be accessed in Portuguese at the link below:

 

http://www.planalto.gov.br/ccivil_03/_Ato2019-2022/2020/Lei/L14010.htm

 

_ Brazilian Department of Business Registration edits Normative Instruction which improves registrations before Boards of Trade

 

On June 15th, 2020, Normative Instruction No. 81 (“IN DREI 81“) was published, which was issued by the National Department of Business Registration and Integration (Departamento Nacional de Registro Empresarial e Integração) (“DREI“), combining in a single document the general rules for public registration of companies in Brazil. The measure was taken with the purpose to simplify and de-bureaucratize business creation, better enabling the business environment for economic development.

 

We highlight the following news set forth by IN DREI 81:

 

  • Notarization of signatures and authentication of documents: the requirement of signatures notarization and documents authentication for filings before the Boards of Trade has been waived, the document may be authenticated by the representative of the respective Board of Trade himself (by means of comparison of the original version with the copy) or by the lawyer or accountant of the interested party presenting a statement of authenticity alongside the documents, as long as such professional has signed the registration request.

 

  • EIRELI’s capital stock: the payment of the capital stock for the incorporation of an individual limited liability company known as EIRELI shall be immediate only in relation to the legal minimum amount (i.e. 100 times the highest minimum wage in the country), the amount exceeding such legal minimum can be paid in a future date.

 

  • Automatic registration: the filing of an instrument of incorporation, alteration and extinction for individual businessmen, EIRELIs and limited liability companies (except public companies) shall be automatic when (i) prior consultations on the viability of the corporate name and location, when applicable, are completed; (ii) the instrument contains only the standardized clauses contained in the respective manuals edited by DREI; and (iii) the mandatory documents for filing are also presented, also according to the manuals edited by DREI. It is worth mentioning that the automatic registration does not apply to corporate acts which approve transformation, merger or spin-off and capital payment with quotas of another company.

 

  • Preferred Quotas in Limited Liability Companies: IN DREI 81 consolidates the doctrinal understanding that it is possible to issue preferred quotas of different classes in limited liability companies, with different political and economic rights (item 5.3.1 of the Limited Liability Company Manual). Furthermore, the understanding that non-voting preferred quotas would not be considered for purposes of installation and deliberation quorums was confirmed.

 

IN DREI 81 enters into force on July 1st, 2020, and the automatic registrations will only be effective in October 13th, 2020.

 

It is not yet clear how the new rules of IN DREI 81 will be applied by each Board of Trade and how the COVID-19 pandemic period could affect their implementation.

 

IN DREI 81 can be accessed in Portuguese at the link below:

 

http://www.in.gov.br/en/web/dou/-/instrucao-normativa-n-81-de-10-de-junho-de-2020-261499054