On May 19, the Executive Power issued Decree No. 3605 (the Decree) which lays down an extraordinary regime of measures for holding shareholders and board meetings using telematic means.
As set forth in the recitals of the Decree, the aim is to provide a regulatory basis within the framework of health emergency to allow the normal operation of collegiate bodies, such as shareholders or board meetings, and, at the same time, comply with the health measures in force.
As a result, exceptional authorization has been granted for a limited period, until 31 December 2020, for the collegiate bodies of corporation to opt for the use of telematic means or digital and/or electronic platforms to hold meetings at a distance, allowing their members to be present and participate in the exercise of their rights and obligations regarding the items of the agenda, in real time and simultaneously with the other participants.
In accordance with Article 2 of the Decree, the holding of meetings by telematic means constitutes an option of the collegiate body. In fact, the collegiate body has the faculty and not the obligation, to convene and hold meetings at a distance and by telematic means, providing a series of requirements are met, which are listed below:
1. Call: The corporation must publish the notice of meeting and indicate the following:
1.1. The telematic means to be used.
1.2. The company's valid e-mail address for communications.
1.3. The mechanism for certifying the right to participate in the meeting within the legal deadline. It is important to emphasize that this requirement refers to the deposit of the shares no less than three working days prior to the meeting date, as provided for in Article 1084 of the Civil Code. To such end, the shareholder may send a certificate in digital format issued by a depositary entity (bank) or by a notary public, indicating the number of shares deposited, type of share, rights granted and number of votes. In addition, the shareholder who sends the certificate via e-mail must notify the corporation of the valid e-mail address to which the corporation must send the information relating to the meeting, as well as information as to whether she/he will participate in the meeting through a proxy, in which case he must attach the corresponding supporting document.
2. Invitation: The corporation must send the invitation to the meeting to the shareholder's mail with the following information:
2.1. Telematic means through which the meeting will take place and information necessary for remote attendance.
2.2. Telematic means by which the information on the items on the agenda may be consulted.
2.3. Means of participating in debates and discussions
2.4. Form and manner of voting.
3. During the meeting, the corporation must allow:
3.1. Simultaneous participation (audio and video) of accredited individuals.
3.2 The participation with voice and vote of the accredited individuals and the members of the body (chairman and secretary of the meeting, statutory auditor).
3.3. Access to the documents to be analyzed by the body.
4. Obligations for the corporation after the meeting:
4.1. To transcribe or print in the corporate book the deliberations and resolutions of the meeting, indicating the individuals who attended and participated in the meeting; the transcript must be signed by the individuals determined by law (chairman, secretary, two shareholders or their representatives, trustee). In accordance with the provisions of the Decree, with the inclusion of the attendees in the minutes and the corresponding telematic records, the requirements for signing the book of attendance at the meeting are considered to have been met.
4.2. To have a full recording of the meeting, in digital format, which must be kept for five years and be available to shareholders and competent bodies.
It is also important to remember that the deadline for calling ordinary meetings was extended to 30 June 2020, so they can be held throughout the month of July 2020.
Finally, we point out that the Decree needs additional regulation from the General Department of Legal Entities and Structures and Final Beneficiaries.
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