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General Shareholder´s Meetings Regulations – Shareholders



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The Superintendence of Companies, Securities and Insurance
issued the Regulation on general shareholders’ meetings of
limited liability companies, corporations, limited joint stock
corporations, mixed economy corporations and simplified stock
corporations, through Resolution No. SCVS-INC-DNCDN-2022-0010,
published in the Second Supplement to the Official Gazette No. 99
of July 6, 2022 (hereinafter the “Regulation”).

The Regulation mainly addresses the changes introduced by the
Law for the Modernization of the Law on Companies.

Below a summary of the most relevant aspects of the
Regulation:

I. CALL 

1.  In addition to the specific
requirements that the call for the general shareholders’
meeting must contain, the Regulation provides that the following
information must be included:

  • The indication of the electronic means for the telematic access
    of the members or shareholders who wish to participate through
    telematic means, with the information of the platform to be used
    for this purpose, as well as the access passwords.

  • A clear and accurate description of the procedures that the
    members or shareholders must comply with in order to participate
    and cast their vote at the general shareholders’ meeting,
    including the following: (i) The right to request information and
    to include items in the agenda, as well as the deadline for
    exercising these powers; (ii) The procedures established for the
    casting of remote votes, indicating the e-mail to which the vote
    for each motion shall be sent to, in the case of participation of
    the members or shareholders by telematic means; and, (iii) The
    indication of the e-mail to which the corresponding document
    whereby a member or shareholder authorizes the participation to the
    general shareholders’ meeting on their behalf shall be
    sent.

2. Format of a press call:  The call may
be published in the newspaper with the largest circulation in the
main domicile of the company, either in physical or digital
format.

3. Waiver of call: The members or
shareholders may waive their right to be called to a specific
general shareholders’ meeting, by sending a communication to
the legal representative, either physically or electronically. Even
if they have not been called to the general shareholders’
meeting, it will be understood that the shareholders attending the
corresponding meeting have waived their right to be called, unless
they express their disagreement with the lack of call before the
meeting takes place.

When the waiver is express, the documents containing the waiver
must be attached to the general shareholders’ meeting
file. 

The member or shareholder waiving the call to a general
shareholders’ meeting will lose the right to challenge,
appeal, or claim the invalidity of the resolutions of the
respective meeting. 

4. Presumption of waiver of call: When a
member or shareholder did not send an e-mail to the legal
representative with the sufficient time in advance, and the bylaws
do not provide for other alternative forms for the call, it shall
be presumed that they waive their right to be called to a general
shareholders’ meeting, without being able to claim the
invalidity of the resolutions of the general shareholders’
meeting, due to the lack of call. 

5. Right of members or minority shareholders to include
additional items to the agenda or to request corrections to the
items on the agenda: 
Members or minority
shareholders holding at least 5% of the subscribed capital may
request, only once for each general shareholders’ meeting,
that additional items be included to those already referred to in
the call of meeting; or that format corrections be made to
previously issued calls. This right shall be applicable to ordinary
and extraordinary general meeting.

The request for additions to the items on the agenda or for
corrections to the items included in the call of meeting by a group
of members or minority shareholders shall not prevent the other
members or shareholders from requesting new additions or
corrections with respect to such call of meeting.

This request must be addressed to the company’s manager
empowered by the bylaws to call the general shareholders’
meeting, within a non-extendable period of 72 hours from the date
of the call to the general shareholders’ meeting.

The matters to be included in the call or the request for formal
corrections must be brought to the attention of the other members
or shareholders up to 24 hours after receipt of the request.
Consequently, the general shareholders’ meeting originally
called shall be held after five days following the day after said
communication have elapsed.

II. OPENING OF THE MEETING AND ASSITANCE

6.  In meetings to be held totally or
partially by telematic means, the manager must produce the
respective register with its updated entries, sharing it through
the technological systems in digital form, if necessary, at the
request of any of the members or shareholders attending the meeting
by telematic means.

7.  In corporations whose shares are
registered in a stock exchange, or in another negotiation
mechanism, the list of attendees may also be based on the list
issued for such purpose by the centralized securities clearing and
settlement depository, where the register of shares and
shareholders is kept; provided that such certificate has been
issued no more than two business hours prior to the time scheduled
for the beginning of the meeting. For the purposes of the
application of these rules, business hours are those from 08:00 to
20:00.

8.  In the case of units or shares owned
by spouses, the individual registered as member or shareholder in
the respective register shall represent them.

9. Recordation of transfers prior to the opening of the
Meeting:
 Individuals who have acquired shares, or
rights of usufruct or pledge over them, which entitle them to
participate and vote in general shareholders’ meetings, and
such transfer or rights have not yet been recorded in the
Company’s Register of Shares and Shareholders, shall be
entitled to participate in the general shareholders’ meeting
called, with voice and vote for the entirety of their shares, for
which purpose the legal representative must record the transfer or
constitution of rights in the respective register, in accordance
with the law. 

10. Attendance to a general shareholders’ meeting
by telematic means: 
General shareholders’
meetings may be held by any telematic means that allows the
attendance and participation of the members and shareholders in
real time. For such purposes, the respective call must announce the
means of communication that will be used to hold the general
shareholders’ meeting, being the responsibility of the
manager to manage the means and provide the necessary information
to allow the access of the members or shareholders on the day and
at the time indicated.

11. Attendance of third parties to general
shareholders’ meetings:
 If deemed appropriate,
other key individuals may attend general shareholders’
meetings, such as executives, experts, press, financial analysts,
or any other person deemed necessary for the holding of this event.
For this purpose, the chairman of the shareholders’ meeting
shall submit the proposal to the attention of the members or
shareholders, so that they may decide whether or not to accept it.
The chairman shall authorize the participation of interested
individuals, for which the approval of the majority of the share
capital attending the meeting must be obtained.

12. Waiver of attendance to the general
shareholders’ meeting:
 The member or
shareholder may waive its right to attend a general
shareholders’ meeting by means of a physical or digital
communication sent to the legal representative up to one hour prior
to the opening of the general shareholders’ meeting. The
waiver of attendance implies that the units or shares of the member
or shareholder will be counted as attendees for the purposes of the
required quorum. Unless the waiving member or shareholder expresses
the contrary, it will be understood that he or she refrained from
voting.

In the content of the waiver, the member or shareholder may
issue his opinion by way of a vote, which may be affirmative,
negative, or refraining, on each of the items of the agenda
contained in the call of the meeting.

13. In-person attendance: Members and
shareholders may attend general shareholders’ meetings in
person; that is, physically or through videoconferences.

The general shareholders’ meeting may convene, meet, and
validly resolve any matter within its authority, using
videoconferencing or any other digital or technological means. For
such purposes, the member or shareholder shall be responsible for
ensuring that his presence is verified through this means of
telematic communication.

The member or shareholder shall leave record of his attendance,
by means of an e-mail addressed to the secretary of the meeting,
and this shall be specified in the list of attendees and such
e-mail must be included in the respective file.

III. VOTES AND RESOLUTIONS 

14. Voting records:  As a backup of the
vote of the members or shareholders who attend the meetings via
videoconference, they must send the secretary of the general
shareholders’ meeting an e-mail stating his vote for each
motion, notwithstanding that the vote of such member or shareholder
is recorded by the company.

15. Business secrets: General
shareholders’ meetings are private meetings at which business
strategies may be discussed or sensitive information may be
disclosed and those present are prohibited from disclosing such
confidential information and business secrets.

16. Cases of unenforceability of resolutions of the
general shareholders’ meeting:
 When the
Superintendence of Companies, Securities and Insurance determines
that one or more resolutions of the general shareholders’
meeting are in violation of the Law on Companies or other relevant
legal or statutory regulations, in exercise of its control and
oversight powers, it may advise the corresponding company that such
resolutions are unenforceable, on the grounds that they have been
taken in violation of express regulations, in order that the
omissions, breaches or violations be remedied, except in the event
that the applicable regulations provide for the nullity of said
resolutions. The foregoing, notwithstanding any subsequent
resolution issued by a competent judicial body or official, in the
event of a claim by an interested or injured party.

17. Recording of the sessions of the general
shareholders’ meeting:
 All sessions of the
general shareholders’ meetings must be recorded on magnetic
or digital media, and it is the responsibility of the secretary of
the shareholders’ meeting to incorporate the electronic
record to the respective file. 

A tape or digital recording shall not be compulsory in the case
of universal meetings unless a shareholder expressly requests
it. 

In the case of foreign members or shareholders, means may be
implemented to allow simultaneous translation of the participations
of the meeting, when deemed convenient.

IV. GENERAL SHAREHOLDERS’ MEETINGS NOT ATTENDED IN
PERSON

18. In the call to a specific general
shareholders’ meeting, the legal representative may suggest
to the members or shareholders, the direct approval of resolutions,
urging them to cast their vote on the items that are part of the
agenda, in order to avoid the opening of a formal session, for
which it will be necessary to comply with the following
requirements: (i) The deadline (no more than 5 days) must be
stated, so that the members or shareholders may express their
agreement with this procedure or not; (ii) The vote must be
recorded by physical, electronic or any other means of
communication that guarantees their identity, their agreement with
this procedure and the affirmative, negative or refraining vote to
the items on the agenda, (iii) The decision shall be agreed by the
majority determined in the bylaws or with the majority of votes
provided for in the Law on Companies, (iv) The legal representative
of the company shall subsequently communicate the resolutions to
the members or shareholders, within 5 days following the receipt of
the vote, (v) The minutes shall be signed only by the legal
representative of the company and shall detail the direction of the
vote and the percentage of the capital represented by each member
or shareholder; and, (vi) The minutes must be accompanied by the
documentation that justifies the direction of the vote.

In the event that the members or shareholders have opposed to
this procedure or have not expressed their acceptance, the general
shareholders’ meeting will be held in the way provided for in
the call of meeting.

19. Universal Shareholders’ Meetings not attended
in person:
 General shareholders’ meetings not
attended in person may also be universal if the members or
shareholders agree on the items of the agenda to be discussed. In
order to determine universality, in addition to the signatures of
the chairman and secretary of the meeting, the members or
shareholders must sign the minutes, under penalty of nullity. The
signature, physical or electronic, of the members or shareholders
may be carried out on a different date than the date in which the
meeting was held.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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