17/12/2020

By André Jerusalmy and Fernanda Lazzarini

The Complementary Bill No. 249/2020 (“PL 249/20”), presented in October by the Executive Branch, was approved by the Chamber of Deputies last Monday, December 14, 2020, and aims to establish the so-called Legal Framework for Startups, which provides for a series of measures to encourage startups and, consequently, to the investment and development of the innovation and venture capital sector (venture capital) in the country.

One point that PL 249/20 tried to define was what a startup. In this sense, they are considered startups companies with a maximum of 10 years of registration in the National Registry of Legal Entities (“CNPJ”), which have gross revenue of up to R$16 million per year (or, in the case of the company being less than 1 year old, revenue of R$1.3 million multiplied by the number of months of activity) and which have as their objective the exploration of some innovative business model in the products or services sector, or which are included in the special Inova Simples regime, a program created to stimulate startups.

Therefore, as long as it meets the above requirements, a startup may adopt any form of business framework, such as individual entrepreneur, individual limited liability company (“EIRELI”), business corporations or even simple corporations.

Regarding legal innovations related to investments in startups, PL 249/2020 contains in its article 4 an exemplary list of instruments that enable the contribution of capital in startups, without the investor becoming an integral part of the company's share capital, but holding participation rights as if they were. In this way, it is possible to guarantee investors greater protection in relation to debts incurred by the startup, as well as situations of disregard of legal personality, except in cases where there is fraudulent, willful and simulation behavior).

Another relevant point that PL 249/2020 brings is in relation to investments in the capital market. PL 249/2020 proposes an amendment to Law No. 6,404/76, determining that startups that qualify as small companies have fewer obligations before the Securities and Exchange Commission (“CVM”) and, therefore, can access the capital market in a simpler way.

PL 249/20 also brought innovations regarding the performance of startups within the scope of public administration, with the aim of facilitating access to startups to the Public Power contracting environment. Thus, PL 249/20 establishes a new bidding modality called “Public Contract for Innovative Solution”, in which the public administration may open the bidding only to startups when the bidding process has as its object “innovative ideas”. In this modality, the contract will have a maximum duration of 1 (one) year and may be renewed for the same period, in addition to having a maximum value established at up to R$1.6 million per contract.

Finally, PL 249/20 also provides for the so-called “sandbox experimental regulatory”, which consists of creating special simplified conditions and previously established criteria so that companies receive temporary authorization to develop innovative business models and test experimental techniques and technologies.

It is worth highlighting that in addition to the innovations brought to startups, the PL also changed other corporate issues, such as the exemption of closed companies holding net equity of up to R$78 million and with up to 30 shareholders from publishing their balance sheets in widely circulated newspapers, and may only publish this information online.