By Priscila Turchetto

PLBrasil | 04.15.2020

On March 30, the Federal Government issued the MP nº 931, which predicts the extension of deadlines for approval of Administrator’s accounts for Corporations, Limited and Cooperative Companies, due to the pandemic caused by COVID-19.

The term was extended by up to 7 (seven) months from the end of the respective fiscal year, for the Companies to hold the Annual General Meeting (AGO), and to approve the Administrator’s accounts.

We emphasize that the extension of the term is exceptional and will not be applicable in subsequent years.

Obligation

In accordance with article 132 of Law No. 6,404 / 1976 (“Corporations Law”), Corporation, through the Annual General Meeting, must approve the accounting statements, allocate the net income for the year and perform the distribution of dividends to shareholders, in to the election of Administrators and Councils, if applicable

The obligation for the Limited Companies, with more than 10 partners, arises from the Civil Code (Article 1078). Companies are obliged to hold a shareholders’ meeting to take the administrators accounts and approval of the accounting statement.

The topics addressed by the shareholders should be:

1. Approvethe administrators accounts, the financial statements and the economic performance – through previous release of documentation to the partners (written and with its evidence of receipt until 30 (thirty) days before the scheduled date for the meeting.);

2. Appoint the administrators, when applicable;

3. Proceedwith the subjects listed on the agenda.

Previous publications needed for the Corporations:

• Announcement to the shareholders, with 1 (one) month in advance, informing that the administration report, the accounting statements, the independent audition report (if exists) and other documents, will be available for consulting, including the location where the documents can be obtained. As set on the article 133 of the Corporation Law.
• Publication of the above mentioned documents by the Corporation with 5 (five) days in advance of the General Meeting;
• Invitation to the shareholders, pursuant to the law, by a notice published at least 3 (three) times in the Official Gazette and in a large circulation newspaper, according to the place where the
  company’s headquarters are located, and at least with 8 (eight) days in advance of the first call, counted from the first announcement, and 5 (five) days for the second call, and shall inform the place, date and time of the General Meeting, as well its respective agenda. The deadline for the
  first call in Public Corporation must be 15 (fifteen) days and the second call after 8 (eight) days.

The aforementioned formalities shall be waived if all the shareholders are present at the General Meeting, and only the publication of the financial statements is mandatory.

Prior publications required for Limited Companies:

Limited Companies must hold a Partners’ Meeting or an Annual Partners Meeting, whose rules shall follow the provisions established in the Articles of Incorporation,or in cases that are omitted, exclusively and in addition to the Brazilian Corporate Law.

2. In case of a General Meeting, it must be summoned by means of a notice published for 3 (three) consecutive times in the Official Gazette and in a newspaper of large circulation, according to the place where the company’s headquarters is located, with 8 (eight) days in advance for the first call and 5 (five) days for the following calls, and shall inform the place, date and time of the meeting, being held by the company administrator.

The aforementioned formalities shall be waived if all the partners are present at the General Meeting or stating, in writing, that were aware of the place, date, time and agenda of the meeting.

Large Business companies

If the approval of the accounts is from a Large Business company (a company that has a total asset in over BRL 240 Million in the previous fiscal year or an annual gross revenue over BRL 300 Million), it will be necessary to verify with the local Board of Trade about the existence of a specific normative establishing all the mandatory rules for registration.

Some Boards of Trade, such as those in the State of Minas Gerais, Rio de Janeiro and São Paulo, request to send the sheets of the newspapers, containing the publication of the balance sheet and financial statements, related to the purpose of the deliberation.

The effects of account approval:

The performance of the General Meeting to approve the accounts, especially to the foreign shareholder,
enables a more detailed analysis of the company’s financial statements and evaluation of how the company’s management has been conducted.

Under the Compliance perspective, the fulfillment of the approval of accounts demonstrates transparency of the company also, serves to detect and remedy possible irregularities.

The approval of the unreserved accounts by the shareholders, at first would exempt the administrators from possible
litigation involving future liability and, in the event of civil liability lawsuit against the administrators, it would be necessary judicial annulment of the meeting or the meeting that approved the resolution.