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April 2022

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

– Improvement to the Remote Voting Forms for the season of Shareholders’ Meetings

– CVM publishes six new Resolutions and includes mandatory disclosure of notice of corporate demands

_Improvement to the Remote Voting Forms for the season of Shareholders’ Meetings

 

B3 introduced improvements to the voting forms, in particular to facilitate the election of the board of directors through the multiple voting procedure, allowing shareholders to distribute their votes proportionally in a different (even smaller) group of candidates than the one nominated in the simple election, which until the beginning of this year was not possible.

 

This amendment was designed to increase shareholders’ voting options in distance voting, in addition to simplifying and providing more security to voting, considering the possibility of mistakes in reading the votes manually imputed by shareholders in the system, especially if we consider that in most cases, shareholders choose to divide their votes equally among some candidates.

 

In addition, the improvements also include: (i) the possibility of including in the remote voting form a resolution with fixed text specific for the election of the president and vice-president of the company’s board of directors, which promotes a good practice of corporate governance, and (ii) the availability of an English version of the system’s standardized questions, an important measure to reduce potential problems of interpretation by foreign shareholders.

 

We contributed on the subject in the article “B3 improves voting instruments for shareholders’ meetings” published in the legislation and market section of “Capital Aberto”, on April 06, 2022, which can be accessed through the link below:

https://legislacaoemercados.capitalaberto.com.br/voto-a-distancia-ganha-novas-possibilidades/

 

_The Role of Corporate Governance in the ESG Agenda

 

Over the past few years, it is possible to observe a significant increase in discussions involving ESG topics in the management of companies around the world. Although social and environmental aspects are gaining increasing prominence, the most advanced pillar in Brazil today is corporate governance.

Since the creation of the Novo Mercado segment of the B3 stock exchange in 2000, the Brazilian market has been establishing a high standard of governance, with the adhesion of specific practices and obligations aiming at increasing transparency in the disclosure of information for the decision-making process of shareholders and investors.

In this context, unsurprisingly, the result of a recent survey by AMBIMA (Associação Brasileira das Entidades dos Mercados Financeiro e de Capitais – which stands for the Brazilian Association of Financial and Capital Market Entities)[1] with 209 asset managers, released earlier this year, indicated that governance is the ESG aspect most observed by asset managers, with ethics and transparency being the factors most mentioned by them (92%).

Among the governance priorities, labor policies and relations (79%), data privacy and security (77%), board independence (75%), and board compensation (54%) were also mentioned.

The survey’s conclusion is encouraging, since pillar G is the core of ESG. Without good corporate governance, it is impossible to effectively implement social and environmental actions and align the company’s objectives with the creation of long-term value not only for its shareholders, but also for society in general.

Under the scope of governance, the rules and procedures to be observed in the decision making of companies are defined, from the elaboration of policies to the determination of rights and responsibilities among its different participants, including the board of directors, officers, shareholders, stakeholders, and the market in general. Thus, the increase in corporate governance standards is directly related to an increase in the transparency with which companies relate and communicate with the market and their shareholders, managers, employees, and partners in general.

It is no coincidence that over the past few years, companies with good corporate governance practices have outperformed the general market indexes in both the US and Brazil.

In this line, an S&P Global survey (2020)[2] on governance factors showed that companies rated below average in relation to good governance are more susceptible to mismanagement. Therefore, failures in governance policies may expose companies to unacceptable levels of risk, significantly compromising their business

Given the evolution of the Brazilian market on the subject, the simple disclosure of information on integrity, policies and codes of ethics and conduct is not enough. It is essential that companies realize the value that the effective adoption of good corporate governance practices generates in their relationships, in the management of their business, and in their perception before the market and the community in which they operate.

The text above was published Portuguese in the Legislação & Mercado section of Capital Aberto on February 22, 2022, and can be accessed through the link below:

https://legislacaoemercados.capitalaberto.com.br/o-papel-da-governanca-corporativa-na-agenda-esg/

 

 

_CVM publishes six new Resolutions and includes mandatory disclosure of notice of corporate demands

 

On March 29th, 2022, the Brazilian Securities and Exchange Commission (“CVM“) published six new Resolutions, effective on May 2nd, 2022. The new rules introduce a new notice on corporates to be disclosed by publicly-held companies, in addition to contemplating revisions related to the Decree No. 10,139/2019, which provides for the consolidation of the interior normative acts to Decree issued by bodies and entities of the direct, autarchic and foundational federal public administration, which do not necessarily imply effective changes of merit, which are verified only in the Resolutions No. 79, 80 and 82.

 

Regarding the regulatory novelties, we highlight the new notice of corporate demands provided for in CVM Resolution No. 80/2022, which consolidated the rules regarding the registration and disclosure of periodic and occasional information by publicly-held companies. This announcement, which received public comments through Public Hearing 1/21, will make it mandatory to disclose certain judicial and arbitration claims based, in whole or in part, on corporate or securities legislation, or on the rules issued by CVM as of May 2, 2022.

 

From then on, it will be necessary to disclose the following information about the corporate claims in which the company, its shareholders or its managers are parties, in this capacity, and (i) that involve homogeneous diffuse, collective or individual rights or interests; or (ii) in which a decision can be rendered whose effects affect the legal sphere of the company or of other holders of securities issued by the issuer that are not parties to the process, such as action for annulment of corporate resolution, action for the administrator liability and action for the controlling shareholder liability:

 

  • notice regarding its initiation, within 7 (seven) business days from, according to the capacity of the party as plaintiff or defendant, the date of filing of the action or summons or, in case of arbitration, of the presentation of the request for its initiation or receipt, indicating: a) parties to the process; b) values, assets or rights involved; c) main facts; and d) request or provision claimed;

 

  • in the case of legal proceedings, decisions on requests for injunctive and evidence relief, decisions on jurisdiction and competence, decisions on the inclusion or exclusion of parties and judgments on the merits or termination of the proceedings without judgment on the merits, in any instance, in the period of 7 (seven) business days from its knowledge by the party;

 

  • in the case of arbitration, submission of a response, execution of an arbitration term or equivalent document that represents stabilization of the demand, decisions on precautionary or urgent measures, decisions on the arbitrators’ jurisdiction, decisions on the inclusion or exclusion of parties and arbitral awards, partial or final, within 7 (seven) business days from its knowledge by the party;

 

  • any agreement entered into in the course of the claim, within 7 (seven) business days of the presentation of its execution, indicating amounts, parts and other aspects that may be of interest to the collective of shareholders.

 

We emphasize that companies may not use the confidentially clause provided for in the regulations of arbitration chambers in order to fail to comply with the disclosure of the notice. Therefore, CVM was categorical, in the notice of Public Hearing 1/21, in stating that chambers regulations cannot contravene legal and regulatory provisions, since the disclosure obligations set forth in CVM Resolution No. 80/2022 reflect central concerns of the capital market rules and cannot be excluded by arbitration agreements, arbitration chamber regulations or by any other agreement.

 

More information regarding the new CVM Resolutions can be found in the link below:

https://www.gov.br/cvm/pt-br/assuntos/noticias/cvm-publica-6-novas-resolucoes


por:

gyedre carneiro de oliveira
gyedre@cdoadv.com.br | +55 11 5171 8901

érika aguiar carvalho fleck
ecarvalho@cdoadv.com.br | +55 11 5171 8902

gabriela saad krieck
gkrieck@cdoadv.com.br | +55 11 5171 8903

marcella de souza e castro fontana
mfontana@cdoadv.com.br | +55 11 5171 8906

camila giovanelli
cgiovanelli@cdoadv.com.br | +55 11 5171 8904

bárbara domene
bdomene@cdoadv.com.br | +55 11 5171 8909

ana carolina h. a. rodrigues
arodrigues@cdoadv.com.br | +55 11 5171 8908