By: Antonio Mazzucco, Luiz Doles and Fernanda Lazzarini
On September 22, 2022, Law 14,451/22 was published, which changes the minimum quorum provided for in the Civil Code for deliberations in limited liability companies, under the justification of streamlining the appointment of non-partner directors as well as other aspects related to their performance. In addition, there was also a change in the quorums for approving changes to the articles of association and carrying out mergers, incorporations and liquidations of companies.
With this, the following matters (which previously required approval by ¾ of the share capital) will now be approved by an absolute majority (50% +1 of the shares) of the share capital:
- I. the appointment of administrators, when made in a separate act;
- II. the dismissal of administrators;
- III. the method of remuneration, when not established in the contract;
- IV. the request for bankruptcy.
- V. modification of the articles of association;
- VI. the incorporation, merger and dissolution of the company, or the cessation of the liquidation status;
The change only affects companies that existed before Law 14,451/22 if their articles of association use the legal quorum and do not stipulate in their text a minimum quorum for deliberations.
These are extremely relevant topics for minority shareholders, as many instruments used this legal quorum, without including specific provisions in their articles of association and shareholder agreements.
This situation makes it advisable to review the company's articles of association and shareholder agreements, especially if the document does not contain specific provisions regarding the appointment of non-partner directors.
Our corporate team is available to provide all necessary advice to companies interested in reviewing their articles of association.
In order to make it easier to view the changes, we have created the table below:
| Civil Code
Law 10.406/2002 |
New wording of the Civil Code by
Law 14.451/2022 |
Comments |
| Art. 1,061. The appointment of non-partner administrators will depend on the approval of the unanimous vote of the partners, while the capital is not fully paid up, and of at least 2/3 (two thirds) after full payment. | Art. 1,061. The appointment of non-partner administrators shall be subject to the approval of at least 2/3 (two thirds) of the partners, while the capital is not fully paid up, and the approval of holders of shares corresponding to more than half of the share capital, after full payment. | With the new wording, for the appointment of a non-partner administrator outside the articles of association by the limited company, the unanimous decision of the partners is no longer necessary when the share capital is not fully paid up, requiring approval of 2/3 of the capital, and, in the case of fully paid up capital, it is now only required approval of the absolute majority of the share capital, that is, 50% of the shares plus 1 share. |
| Art. 1,076. Notwithstanding the provisions of art. 1,061, the resolutions of the partners shall be taken:
I – by votes corresponding to at least three quarters of the share capital, in the cases provided for in items V and VI of art. 1,071; [modification of the articles of association and the incorporation, merger and dissolution of the company, or the cessation of the liquidation status] |
Art. 1,076. Notwithstanding the provisions of art. 1,061, the resolutions of the partners shall be taken:
I – Revoked |
With the repeal of item I of art. 1,076, the quorum for modifying the articles of association of a limited liability company and the incorporation, merger and dissolution of the company, or the cessation of the liquidation status, no longer requires ¾ of the approval of the share capital.
The matters previously provided for in this section were absorbed by section II of the same article, and as a result, the minimum quorum for such deliberations became 50% of the shares plus 1 share of the company's share capital (absolute majority). |
| II – by votes corresponding to more than half of the share capital, in the cases provided for in items II, III, IV and VIII of art. 1,071; [the appointment of administrators, when made in a separate act, the dismissal of administrators, the method of their remuneration, when not established in the contract, the request for bankruptcy] | II – by votes corresponding to more than half of the share capital, in the cases provided for in items II, III, IV, V, VI and VIII of the caput of art. 1,071 of this Code; [modification of the articles of association and incorporation, the merger and dissolution of the company, or the cessation of the liquidation status, the appointment of administrators, when done in a separate act, the dismissal of administrators, the method of their remuneration, when not established in the contract, the request for composition with creditors] | With the repeal of item I of art. 1,076, the matters of art. 1,071 that had their quorums defined in the item became part of art. 1,076, II. |