CVM Orienting Opinion 30

CVM ORIENTING OPINION NO. 30.

SUMMARY: Interpretation of § 1 of art. 100 of Law No. 6404 of December 15, 1976 - Corporations Law. Provision of certificates of entries contained in the books mentioned in items I to IV of article 100.

This opinion addresses the interpretation to be given to paragraph 1 of article 100 of Law No. 6404/76.

The corporation is obliged to maintain the common books of merchants, those required by commercial law, those required by special laws, such as tax books and those that record social security and labor obligations, in addition to those mandatory by its specific legislation.

The corporate law distinguishes, in article 100 where the books specific to the company are enumerated, those that have a public character and those that must be preserved from the view of anyone who does not have a legitimate interest in their examination.

The books enumerated in items I to IV of art. 100 have the character of public record, being subject to the formalities provided for the same and, like it, serving to constitute rights or to enforce them erga omnes.

Thus, the recording of ownership in the "Register of Registered Shares Book" has a constitutive character and enables the exercise of rights against the company.

In recognition of the public nature of these books, Law No. 6404/76, in the sole paragraph of article 103, establishes that it is up to the judge competent to resolve doubts raised by public registry officials to settle disputes arising between the shareholder, or any interested party, and the company, the agent issuing certificates or the institution depositing book-entry shares, regarding the endorsements ordered by law, or regarding annotations, entries or transfers of shares, beneficiary parts, debentures or subscription warrants, in the registration or transfer books.

The law provided thus, because the acts registered in these books are those that may present effects relative to third parties, such as, for example, the endorsement of real burdens on registered shares, which may interest a person who wishes to acquire the encumbered securities.

In addition to this indication of the publicity of the mentioned records, paragraph 1 of art. 100 expressly allows anyone, shareholder or not, access to certificates of the entries contained in the books enumerated in items I to IV of said article.

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The law, in addition to unequivocally referring to any person, imposes no conditioning on the obtaining of these certificates. The person requesting them does not need to justify the request, nor even to base it, nor does it matter whether they are a shareholder or not of the company.

The law also specifies which annotations the company must proceed with. For example, regarding the "Registered Shares Books", it stipulates that the information taxatively listed in letters "a" to "f" of item I of art. 100 will be inscribed, annotated and endorsed:

a) the name of the shareholder and the number of their shares;

b) of the capital contributions or installments paid;

c) of the conversion of shares, from one form, species or class to another;

d) of the redemption, reimbursement and amortization of shares, or their acquisition by the company;

e) of the mutations effected by the alienation or transfer of shares; and

f) of the pledge, usufruct, fideicommissum, fiduciary alienation for security or any burden that encumbers the shares or obstructs their negotiation.

In the view of the CVM, these are the only information that must be provided by the company, when requested by any interested party, shareholder or not. It should be mentioned, opportunistically, that the company is not obliged to provide the addresses of shareholders or any other registration data, since the law omitted regarding such annotations that, if they exist in the books, are for the use and control of the society.

The case of provision of addresses, provided for in § 3 of art. 126 of the corporate law, is excepted, that is, any shareholder who represents half a percent of the share capital may request the list of addresses of the shareholders to whom the company sent proxy requests.

Said paragraph 1 of article 100 also provides that the company may charge for the cost of providing certificates. The previous law (Decree-Law No. 2627/40) had already included the same rule, stipulating, in addition, the charging of a modest remuneration for the service. The current law did not repeat this qualification of the cost to be charged.

Nevertheless, the company may not hinder the interested party's access to the certificates, charging unjustifiable values, it being understood that the charge must be compatible with the cost of the service, taking as a parameter the price usually charged by similar tasks performed by Public Registry or Public Administration bodies.

The law also failed to refer to the period in which the service must be provided. Obviously, the period should be that necessary for the processing of the information, that is, the time required to process

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the records/files and generate the printout, without delays tending to invalidate the right assured by law.

In the case of book-entry shares, where the entries are made by the depositary financial institution, it is up to this institution to provide the certificates of the entries contained in the deposit account statements, whenever they are requested by any interested party.

Finally, it is worth mentioning that the responsibility for the use of the information obtained through certificates provided by the company or by the depositary institution is exclusively that of the one who uses them. Therefore, the one who uses the information contained in the certificate provided in an inadequate manner will be liable, civilly and, if applicable, criminally, for the misuse of the information contained in the certificate provided.

Signed original by

DIVA MARIA RIBEIRO PINTO
Manager Gj-1

Signed original by

MARIA DA APARECIDA CUNHA LANA
Acting Legal Superintendent

Approved in a meeting of the Board, on 09/09/1996

Signed original by

MARIA ISABEL DO PRADO BOCATER
Acting President