The Securities and Exchange Commission (CVM) edited CVM Resolution No. 168 (CVM Resolution 168), which deals with issues such as the composition of boards of directors and plural voting in publicly-held companies. Through this new resolution, the autarchy sought to regulate measures related to the Business Environment Improvement Law (Law 14.195), enacted in August 2021.
Specific provisions of CVM Resolution No. 59, of December 22, 2021, and CVM Resolution No. 80, of March 29, 2022 (CVM Resolution 80) were amended. We summarize below the main changes promoted:
- expansion of the application of the rules provided for in the statement made in the possession of the administrator established in Annex K of CVM Resolution 80, which becomes valid for the election and investiture in office of the management of a publicly-held company, and not only the statement made by directors, as provided for in § 4 of article 147 of the Corporation Law, under the terms of § 3 of the same article;
- exemption from the prohibition of accumulating the positions of chief executive officer or chief executive and chairman of the board of directors for publicly-held companies considered to be small, pursuant to art. 294-B of the Corporation Law, that is, those who earn annual gross revenue of less than R$500.000.000,00;
- mandatory participation of independent members on the board of directors of companies that, cumulatively: (i) are registered in category A; (ii) have securities admitted to trading on the stock exchange by an organized market management entity; and (iii) have outstanding shares or certificates of deposit of shares;
- cumulatively observing the requirements listed in the item above, the requirement that at least 20% of the total number of members of the board of directors be independent directors, without rules of rounding (that is, in a board that is composed of up to 5 (five) members, the presence of only 1 (one) independent director will be mandatory).
- The independence criteria were established with wording that approximates the rules of the Novo Mercado Regulation of B3, however, without a minimum of independent directors in absolute terms; and the rule that the plural vote will not be applied in the general meetings of shareholders that resolve on transactions with related parties that must be disclosed by publicly-held companies under the terms of Annex F of CVM Resolution 80 (basically transaction or the set of related transactions, whose value exceeds the lower of the following amounts: a) R$ 50.000.000,00 or b) 1% of the issuer's total assets).
CVM Resolution 168 comes into force on 3.10.2022, however, the rules that deal with the prohibition of the accumulation of positions of CEO or main executive and chairman of the board of directors and the mandatory participation, classification and characterization of independent directors on the board of directors, will apply to terms of office starting from 1.1.2023, so that companies have a reasonable period of adaptation.
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