PAYMENT OF CAPITAL
(Form of payment of capital participation)
1. The nominal value of capital participations, paid in money or in kind,
shall be a multiple of 50 patacas.
2. If in money, its payment consists in the delivery of an amount in patacas
at least equal to the nominal value of the participation; if in kind, in the
transfer to the company of goods susceptible to judicial seizure, of a value at
least equal to the nominal value of the participation.
3. If the capital participation consists in the transfer to the company of a
credit right over a third party and it is not punctually performed by the
debtor, the shareholder shall pay in money the credit, or the part not received
by the company, within eight days after maturity.
4. If, for any reason, there is a negative difference between the value of
the goods at the date of their payment and the value resulting from the
appraisal, the shareholder is responsible for the difference, which he should
pay in money, until the nominal value of his participation is reached.
(Verification of value of payment in kind)
1. The goods with which capital participations in kind are to be paid shall
be identified, described and appraised by means of a report to be prepared by an
auditor or a firm of auditors, which shall be attached to the act of
incorporation.
2. The report shall be prepared no more than 60 days before the date of the
act of incorporation and it must mention the criteria used in the appraisal.
(Moment of payment of capital participations)
1. Without prejudice to the following paragraphs, capital participations
shall be fully paid at the moment of the act of incorporation.
2. The payment of money participations can be delayed in accordance with the
terms set for each type of company.
3. The delivery of goods in payment of a capital participation in kind can
only be delayed if the company has an interest in such delay, and only for a
specified date which shall be mentioned in the act of incorporation.
4. If the delay in the payment of a capital participation in kind is for a
period of time longer than one year, it shall be object of a new report, to be
prepared by an auditor or by a firm of auditors; if its value is lower than the
value arising from the previous appraisal, paragraph 4 of article 201 shall
apply.
5. If, as a result of a legitimate act of a third party, the company is
deprived of a good already delivered by a shareholder, or if its delivery, which
had been delayed in accordance with paragraph 3, becomes impossible, the
shareholder shall pay in money the nominal value of his participation, within
eight days from the occurrence of any of such events.
(Performance of payment of capital participation)
1. The rights of a company to the payment of capital participations cannot be
renounced and cannot be compensated.
2. A shareholder who does not punctually perform the participation for which
he is obliged is liable, besides the capital matured, for the respective
interest and for other damage to the company arising from his non-performance.
3. While the non-performance remains, a shareholder cannot exercise the
rights corresponding to the part in delay, namely the right to profits.
(Rights of creditors regarding contributions)
1. The creditors of any company can:
a) exercise the rights of the company relating to matured and unpaid capital
participations;
b) promote judicially the payment of the capital participations before they
mature, provided that such action is necessary for the conservation of an
adequate guarantee of their credits.
2. The company can oppose the request of such creditors, by paying their
credits, if matured, or, if not yet matured, by providing adequate guarantees to
such creditors or by paying them at the discount corresponding to the
anticipation.
(Loss of half of capital)
1. If the organ of administration, through the accounts of the accounting
period,
verifies that the net worth of the company is lower than half of the value of
the company capital, it shall propose, in accordance with the following
paragraph, that the company be dissolved or that the capital be reduced, unless
the shareholders, within 60 days from the resolution that arises from such
proposal, pay amounts in money that replenish the assets in a measure equal to
the value of the company capital.
2. Such proposal shall be presented and voted, even if it is not included in
the order of the day, in the same meeting that is to discuss the accounts, or in
a general meeting to be called within eight days from its judicial approval in
accordance with article 259.
3. If the members of the administration have not complied with the provisions
of the previous paragraphs or if the resolutions there mentioned have not been
passed, any shareholder or creditor can request from the court the dissolution
of the company while such situation continues, without prejudice to the
possibility for the shareholders to make the payments mentioned in paragraph 1
up to 90 days after the citation of the company; the judicial proceedings shall
be suspended for the same period of time.
OTHER RIGHTS AND OBLIGATIONS
(Usufruct and pledge of company participation)
1. The creation of a usufruct and the pledge of company participations are
subject to the form required, and to the limitations established, for the
transfer of such participation.
2. Except if there is an express stipulation to the contrary by the parties,
the rights inherent to the pledged company participation belong to the holder of
the participation, but the balance of the liquidation of the company shall be
handed to the pledge creditor and computed as interest and capital of the debt
secured; the excess shall be returned to the holder of the participation.
3. The usufructuary of a company participation has the right:
a) to the distributed profits corresponding to the time of duration of the
usufruct;
b) to vote in general meetings, except in the case of resolutions that
involve amendments to the articles of association or the dissolution of the
company;
c) to enjoy the amounts that, in the act of liquidation of the company or in
the redemption of shares, belong to the company participation which is the
object of the usufruct.
4. In resolutions that involve amendment to the articles of association or
merger, division, transformation or dissolution of the company, the vote belongs
jointly to the usufructuary and to the holder of the underlying ownership right.
5. The usufruct of company participations is regulated by the provisions of
the Civil Code in everything that is not regulated in this Code.
(Acquisition and transfer of goods from and to shareholders)
1. With the exception of those related to consumable goods and which are part
of the normal activity of the company, the acquisition and transfer of company
assets to shareholders holding a participation of more than 1% of the company
capital can only be made against payment, and after prior approval by a
shareholders' resolution in which the shareholder from or to whom the goods are
to be acquired or transferred does not vote.
2. The shareholders' resolution shall always be preceded by verification of
the value of the goods, in accordance with article 202, and must be registered
prior to the acquisition or transfer.
3. Contracts which formalize the acquisitions or transfers to the
shareholders mentioned in paragraph 1 shall, under penalty of nullity, be made
in a written document, which can be a private document if no other form is
required by the nature of the goods.
(Right to information)
1. Without prejudice to the rules applicable to each type of company, every
shareholder has the right to:
a) inspect the minutes books of the general meeting;
b) inspect the book of registration of liens, charges and guarantees;
c) inspect the book of registration of shares;
d) inspect records of attendance, if they exist;
e) inspect all other documents which, in accordance with the law or with the
articles of association, must be made available to the shareholders before
general meetings;
f) request from the administrators and, if they exist, from the single
supervisor or the members of the supervisory board or the company secretary, any
information relating to matters included in the order of the day of the general
meeting before a vote is taken, provided that this is reasonably necessary for
an informed exercise of the right to vote;
g) request in writing from the administration written information about the
management of the company, namely on any company operation in particular;
h) request copies of resolutions or of entries in the books mentioned in
subparagraphs a) to d).
2. The right mentioned in subparagraph g) of the previous paragraph can be
restricted by the articles of association and, regarding limited liability
shareholders, made dependent upon holding a certain percentage of company
capital, which cannot, in any case, exceed 5%.
3. A shareholder who uses information obtained in this manner to the
detriment of the company is liable for the damage caused to it.
4. In case of refusal of requested information, a shareholder can request the
court to order that the information be provided to him, explaining the reasons
for the request. After hearing the company the judge shall decide, without
further evidence, within 10 days. If the request is granted, the administrators
liable for the refusal shall compensate the shareholder for the damage caused
and refund him the expenses that he has justifiably made.
5. A shareholder to whom false, incomplete or clearly non-explanatory
information is provided can request from the court a judicial examination of the
company in accordance with article 211.
(Communications of a company to shareholders)
1. All company acts which must be personally communicated to shareholders
shall be communicated by registered letter sent to the shareholders' domiciles
on file with the company.
2. If communication by registered letter to all shareholders is not possible,
announcements shall be published in accordance with article 326.
(Judicial examination of company)
1. If any shareholder has serious grounds to suspect gross irregularities in
the activity of the company he can request the court to conduct an examination
of the company so as to clarify the matter, indicating the facts on which the
suspicion is based and the irregularities.
2. The court, after hearing the administration, can order that such
examination be conducted, appointing an accounting auditor for the purpose.
3. The accounting auditor shall be indicated by the competent entity.
4. The court at its discretion can subject the carrying out of the
examination to the posting of a bail by the applicant.
5. If irregularities are found, the court can, in accordance with their
seriousness, order:
a) the regularization of any illegal situations found, stating a time limit
for this;
b) the removal of the holders of company organs responsible for the
irregularities found;
c) the dissolution of the company, if facts constituting a cause of
dissolution are found.
6. If irregularities are found, the cost of the procedure, the payment of the
auditor mentioned in paragraph 2 and the expenses that the applicant has
justifiably made, shall be paid by the company, which will have a right of return
against the holders of company organs responsible for the irregularities.
7. A similar judicial exam to the company can be requested by the head of the
commercial register whenever an omission of acts of registration, or the content
of documents presented for registration, point to the possible existence of
irregularities which, after notification to the administration, are not
corrected.
(Responsibility of dominant shareholder)
1. A dominant shareholder is an individual or a collective person who, by
himself or together with other companies of which he is also the dominant
shareholder, or with other shareholders to whom he is connected by agreements
outside the company, detains a majority participation in the company capital, or
has more than half of the votes, or has the power to elect the majority of the
members of the administration.
2. A dominant shareholder who, by himself or through the persons mentioned in
the previous paragraph, uses the power of domination so as to prejudice the
company or other shareholders, is liable for the damage caused to the former or
to the latter.
3. Grounds for the duty to compensate namely are the following:
a) to cause the election of an administrator or a member of the supervisory
board or single supervisor who he knows to be morally or technically incapable;
b) to induce an administrator, manager, procurator, member of the
supervisory board or a single supervisor or company secretary to practice an
unlawful act;
c) to conclude, either directly or with the intermediation of another person,
a contract with the company that he dominates, in favorable and discriminatory
conditions, to his own benefit or to the benefit of a third party;
d) to induce the administration of the company, or any manager or procurator of it, to conclude with a third party a contract, in favorable
and discriminatory conditions, to his own benefit or to the benefit of a third
party;
e) to cause the approval of resolutions with the knowledge and the intention
to obtain, for himself or to a third party, an undue advantage, to the detriment
of the company or of other shareholders or of creditors of it.
4. An administrator, manager, procurator, member of the supervisory
board, single supervisor or company secretary who practices, concludes or does
not prevent, having the possibility to do so, the practice or the conclusion of
any acts or contracts mentioned in subparagraphs b), c) and d) of the previous
paragraph, is jointly and severally liable with the dominant shareholder for the
damage caused to the company or directly to other shareholders.
5. Shareholders who intentionally contribute with their votes to the approval
of a resolution mentioned in subparagraph e) of paragraph 3, as well as the
administrators who intentionally execute it, are jointly and severally liable
with the dominant shareholder for the damage caused.
6. If, as a consequence of the practice, conclusion or execution of any act
or contract or taking of a resolution mentioned in paragraphs b), c), d) or e)
of paragraph 3, the assets of the company become insufficient to satisfy the
respective credits, any creditor can exercise any right to compensation that the
company may have.
(Single shareholdership)
1. If the bankruptcy of a company with only one shareholder is declared,
whether the company holds parts of its own capital or not, the single
shareholder is personally, jointly and severally and without limit liable for
all debts of the company if it is proven that the assets of the company were not
exclusively used in performance of the respective obligations.
2. The non-exclusive use mentioned in the final part of the previous
paragraph is presumed if the company's accounting books are not kept in
accordance with subparagraphs b) and g) of paragraph 1 of article 242 or if
legal transactions without a written form were concluded between the company and
the shareholder.
COMPANY ORGANS
GENERAL PROVISIONS
(Company organs)
1. The organs of commercial companies are:
a) the general meeting;
b) the administration;
c) the company secretary;
d) the supervisory board or single supervisor.
2. The existence of a company secretary and of a supervisory board or single
supervisor is compulsory in companies which are in any of the following
situations:
a) have 10 or more shareholders;
b) issue bonds;
c) have the form of a public company;
d) have an amount of company capital, balance sheet value or income volume in
excess of a limit stated by portaria of the Governor.
3. All holders of company positions shall declare in writing if they accept
the exercise of the positions to which they have been elected or appointed.
(Judicial taking up of company positions)
If a person elected or appointed to a company position is obstructed from
exercising it, such person can request the judicial taking up of the position,
in accordance with the Civil Procedure Code.
GENERAL MEETING
(Matters falling within the competence of shareholder resolution)
Besides the matters specially attributed by the law, the shareholders have
competence to pass resolutions on the following matters:
a) election and removal of the administration and of the supervisory organ;
b) balance sheet, profit and loss account and report of the administration
concerning the accounting period;
c) report and opinion of the supervisory board or single supervisor;
d) apportioning of the results of the accounting period;
e) amendment of the articles of association;
f) increase and reduction of the company capital;
g) division, merger and transformation of the company;
h) dissolution of the company;
i) all matters which, in accordance with legal provisions or with the
articles of association, do not fall within the competence of other company
organs.
(Types of resolutions)
1. Shareholders take decisions by having a general meeting, in accordance
with the rules set for each type of company.
2. A general meeting shall be preceded by a call and by other formalities, in
accordance with the provisions and within the time limits stated for each type
of company; however, the presence of all shareholders, personally or through a
representative with specific powers for that purpose, renders non-invokable any
irregularities, including the lack of a call, provided that no shareholder
opposes the holding of a general meeting, at which, however, only resolutions on
matters expressly allowed by all can be adopted.
3. Shareholders can take decisions without a general meeting, provided that
all declare in writing the orientation of their vote in a document that must
include the proposal of resolution, duly dated, signed and addressed to the
company.
4. A resolution in writing is considered as adopted on the date on which the
last of the documents mentioned in the previous paragraph is received in the
company.
5. Once a decision is taken in accordance with paragraphs 3 and 4, the
company secretary or, if he does not exist, the president of the chairing
committee of the general meeting or the person who substitutes him shall provide
information about such resolution, in writing, to all shareholders.
(General meeting)
1. Except if there is a legal provision to the contrary, all shareholders
have the right to participate, discuss and vote, in the sessions of the general
meeting.
2. Except if there is a provision of the articles of association to the
contrary, a shareholder can only be represented in the general meeting by
another shareholder, by the spouse, or by a descendant or ascendant; a letter
signed by the shareholder and addressed to the president of the chairing
committee is sufficient as an instrument of voluntary representation.
3. The persons who are part of the organs of the company shall be present at
the sessions of the general meeting, if called by the president of the chairing
committee.
(Restriction on right to vote due to conflict of interest)
A shareholder cannot vote, either personally or through a representative, and
also cannot represent another shareholder in a vote, whenever he has a conflict
of interest with the company in relation to the subject matter of the
resolution.
(Ordinary and extraordinary sessions of the general meeting)
1. The general meeting shall take place ordinarily within the three months
immediately following the end of each accounting period, in order to:
a) decide on the balance sheet, the profit and loss account and the report of
the administration concerning the accounting period;
b) decide on the apportionment of the results;
c) elect the administrators and the members of the supervisory board, or the
single supervisor, to any vacancies that may exist in these organs.
2. The ordinary general meeting can decide on the initiation of legal
proceedings of liability against administrators and on the removal of those
administrators who the general meeting considers responsible, even if this
matter is not included in the order of the day.
3. The general meeting takes place extraordinarily whenever it is duly
called, by initiative of the president of the chairing committee or upon request
of the administration, supervisory board or single supervisor or shareholders
representing at least 10% of the company capital.
(Call of sessions of the general meeting)
1. Sessions of the general meeting are called by the president of the
chairing committee, in accordance and within the time limits stated for each
type of company, with the exception of the call for the first general meeting,
which shall be made by the shareholders.
2. If the president of the chairing committee does not call a general meeting
when in accordance with the law he should do so, the administration, the
supervisory board or the single supervisor or the shareholders that have
requested it can call it directly; documented expenses which they have
justifiably incurred shall be paid by the company.
(Call notice)
1. A call notice shall mention at least:
a) the firm, registered office and registration number of the company;
b) the place, day and time of the meeting;
c) the type of meeting;
d) the order of the day of the meeting, mentioning specifically the matters
subject to resolution of the shareholders.
2. The call notice shall also contain an indication of any documents that are
available for consultation by shareholders at the registered office.
3. Meetings shall take place in the registered office of the company or, if
the chairing committee of the general meeting deems convenient, in any other
place of the Territory, provided that the latter is properly identified in the
call notice.
4. If the law or the articles of association require a quorum for the general
meeting to take place and decide on a certain matter, a second date can be
stated in the call notice for a new meeting should the quorum required for the
first call not be present, provided that the two dates are separated by at least
15 days; a meeting taking place on the second date is considered, for all
purposes, as a meeting of the general meeting under a second call.
5. A call notice shall be signed by the president of the chairing committee
or, in the cases mentioned in paragraph 2 of the previous article, by any of the
administrators, by the president of the supervisory board or by the single
supervisor or by those shareholders who call the general meeting.
(Functioning of general meeting)
1. Sessions of a general meeting shall be conducted by a chairing committee
[mesa] made of a president and at least one secretary.
2. The president of the chairing committee is elected by the general meeting,
among the shareholders or other persons; the function of secretary to the
chairing committee shall be undertaken by the company secretary, if there is
one.
3. In the absence of election of a president in accordance with the previous
paragraph, and if there is no company secretary, or also if either of them is
not present, any administrator shall function as president of the chairing
committee and any shareholder chosen by the latter shall be the secretary.
(Interruption and suspension of sessions)
1. If the matters in the order of the day cannot be exhausted on the day for
which the meeting was called, it shall continue at the same time and in the same
place on the following business day.
2. Without prejudice to the previous paragraph, a resolution can be taken to
suspend the session and call a new one for a date within no more than 30 days.
3. A session of the general meeting can only be suspended twice.
(Majorities)
1. In no case is a resolution considered as adopted if it was not approved by
the number of votes required by the law or by the articles of association.
2. The votes of shareholders who are prevented from voting in accordance with
article 219 shall not be taken into account in the determination of the majority
required by the law or by the articles of association.
3. The attribution of votes, the quorum for the functioning of the general
meeting and the composition of the majorities necessary for passing resolutions,
depending upon the subject matter, are regulated by the norms stated by the law
for each type of company.
(Unity of vote)
1. The votes that each shareholder has a right to cannot be cast in different
ways in the same voting process, nor can they be partly cast.
2. In case of breach of the previous paragraph all votes cast by the
shareholder in that voting process shall be counted as abstentions.
3. A shareholder representing other shareholders can vote in a different way
from those he represents and can decide not to exercise his own or the
represented shareholders' right of vote.
(Lack of assent of shareholders)
Except in there is a provision of the law or of the articles of association
to the contrary, resolutions by shareholders that decide on the special rights
of one or some shareholders or categories of shareholders do not produce any
effects until the holders of such rights have given their express or implied
assent.
(Void resolutions)
1. The following resolutions by shareholders shall be void:
a) resolutions taken in a general meeting that was not called, except in the
case of paragraph 2 of article 217;
b) resolutions taken in writing, if any shareholder has not exercised in
writing the right to vote in accordance with paragraph 3 of article 217;
c) resolutions contrary to good mores [bons costumes];
d) resolutions on matters that are not subject to resolution by shareholders,
by the law or by nature, or that are not part of the order of the day;
e) resolutions that breach legal provisions mainly or exclusively aimed at
the protection of the company's creditors or of the public interest.
2. For the purpose of subparagraph a) of the previous paragraph, a general
meeting whose call notice is not signed by a person with competence for it or
that does not mention the meeting's date, time, place and order of the day is
considered as not called.
3. The void nature of a resolution cannot be invoked if more than five years
have elapsed since the date of its registration, except by the Public Ministry
if the resolution constitutes a fact punishable under criminal law for which the
law establishes a longer period of limitation of actions.
(Voidable resolutions)
1. The following resolutions by shareholders are voidable:
a) resolutions that breach any provision of the law, which do not cause it to
be void in accordance with paragraph 1 of the previous article, or that breach
any provision of the articles of association;
b) resolutions that have not been preceded by the provision to a shareholder
of elements of information that he has requested and to which he has a right,
granted by the law or the articles of association;
c) resolutions which have been taken in a general meeting whose process of
call contains any irregularity other than those mentioned in paragraph 2 of the
previous article.
2. For the annulment of a resolution on the basis of subparagraph a) of the
previous paragraph, it is irrelevant that the general meeting or the other
shareholders declare or have declared that the refusal of information has not
influenced the taking of the resolution.
3. The voidability of a resolution whose annulment has been initiated within
the legal time limit ceases if the shareholders confirm the voidable resolution
by means of another resolution; however, a shareholder who has any interest in
it can continue the legal proceedings with a view to the annulment of the
resolution in relation to the period prior to the resolution that has confirmed
it.
(Annulment proceedings)
1. The following have legitimacy to challenge a resolution:
a) any shareholder who has participated in it, unless he has voted with the
winning majority;
b) any shareholder who has been irregularly prevented from participating in
the general meeting, or who has not participated in the irregularly called
meeting;
c) the supervisory organ;
d) any administrator or member of the supervisory organ, if the execution of
the resolution might cause any of them to incur criminal or civil liability.
2. The time limit to initiate annulment proceedings is 20 days from:
a) the date on which the resolution was taken;
b) the date on which the shareholder had knowledge of the resolution, if he
was irregularly prevented from participating in the general meeting or if
the meeting was irregularly called.
(Provisions common to nullity and annulment proceedings)
1. Both proceedings for the declaration of nullity or for annulment shall be
initiated solely against the company.
2. The company pays all costs of proceedings initiated by the supervisory
organ, even if they are judged to be without merit.
3. The judicial decision that declares void or voids a resolution produces
effects in favor of or against all shareholders and organs of the company, even
if they were not party to the procedure or have not intervened in it.
4. A declaration of nullity or annulment does not affect the rights acquired
in good faith by third parties, on the basis of acts practiced in execution of
the resolution.
5. There is no good faith if the third parties knew of or should have known
of the cause of nullity or voidability.
(Suspension of company resolutions)
1. Any person with legitimacy to request a declaration of nullity or
annulment of a resolution by shareholders can petition the court to order a
provisional suspension of the execution of the resolution or, if it has already
been executed or is about to be executed, the suspension of its effects.
2. The time limit to request the provisional measure is five days from the
date mentioned in subparagraphs a) and b) of paragraph 2 of article 230, or from
knowledge of the resolution if the applicant is not a shareholder, member of the
administration or of the supervisory board or a single supervisor.
3. The applicant shall state his interest in the order and the damage that
may arise from its execution, the continuation of the execution or from its
effects.
4. The Civil Procedure Code shall apply in everything that does not
contradict the provisions of the previous paragraphs.
(Minutes)
1. Resolutions by shareholders can only be evidenced by the minutes of the
meetings or, if resolutions in writing are allowed, by the documents that state
them.
2. Minutes shall mention:
a) the place, day, time and order of the day of the meeting;
b) the name of the person who chaired the meeting;
c) the name of the person who acted as secretary to the meeting;
d) reference to the documents and reports submitted to the meeting;
e) the exact content of the resolutions proposed and the result of the
respective votes;
f) an express mention of the direction of the vote of any shareholder who so
requests;
g) the signature of the person who chaired the general meeting, or the
signature of the person who chairs the following meeting, as well as the
signature of the person who acted as secretary to the meeting.
3. A reference to any resolutions taken in writing in accordance with
paragraphs 3 and 4 of article 217, and to resolutions stated in public deeds or
in instruments out of notes [fora de notas], shall be inserted in the minutes
book or in the loose sheets; copies of such documents shall be filed with the
company.
4. Minutes can also be taken in a separate document; the signatures of
shareholders shall be certified by a notary.
5. No shareholder has a duty to sign minutes that are not recorded in the
respective book or in loose sheets, duly numbered and signed.
[As amended by Law no. 6/2000, of April 27]
ADMINISTRATION
(Administration)
1. Any individual or collective person with full capacity can be an
administrator.
2. If a collective person is appointed administrator, it shall nominate an
individual to exercise the position on its behalf; the collective person is
jointly and severally liable with the appointed person for the acts of the
latter.
3. The composition, appointment, removal and functioning of the
administration shall follow the rules stated for each type of company; the first
administration shall be appointed by the shareholders in the act of
incorporation in accordance with subparagraph f) of paragraph 3 of article 179.
[As amended by Law no. 6/2000, of April 27]
(Competence of administration)
1. A company's administration shall manage and represent it, in accordance
with the rules stated for each type of company.
2. The administrators of a company shall always act in its interest and shall
act with the diligence of a systematic and ordered manager.
3. Irrespective of an express authorization in the articles of association,
the company can, by means of an authorization by the general meeting or by the
board of administration, if there is one, engage managers to run certain lines
of business that are part of its object, or appoint auxiliaries to represent it
in certain acts or contracts or, by notary instrument, appoint procurators for the practice of certain acts or categories of acts.
4. The company is civilly liable for the acts and omissions of the persons
mentioned in paragraphs 2 and 3 in the same manner as a principal is liable for
the acts and omissions of an agent.
[As amended by Law no. 6/2000, of April 27]
(Powers of representation of administrators and binding of the company)
1. Acts practiced by administrators, in the name of a company and within the
powers that the law grants them, bind it regarding third parties, irrespective
of any limitations of powers of representation mentioned in the articles of
association or arising from resolutions by shareholders, even if such
resolutions are published.
2. However, the company can invoke such limitations against third parties, as
well as limitations arising from its company object, if it proves that the third
party knew or could not ignore, given the circumstances, that the act practiced
did not respect such clause and if, in the meantime, the company did not assume
it, by means of an express or implied resolution by shareholders.
3. The knowledge mentioned in the previous paragraphs cannot be evidenced
only by the publicity given to the articles of association.
4. Administrators bind the company by means of their signature, with mention
of their capacity.
COMPANY SECRETARY
(Company secretary)
1. A company secretary can be appointed, even if the company is not obliged
to do so in accordance with paragraph 2 of article 214.
2. With the exception of the first one, who shall be appointed by the
shareholders immediately in the act of incorporation in accordance with
subparagraph f) of paragraph 3 of article 179, the company secretary is
appointed and dismissed by the administration, in the minutes, among the
administrators or any employees of the company; the function of secretary can
also be exercised by a lawyer hired by the company for this purpose.
3. A company secretary who is also a procurator or administrator of the
company cannot intervene in acts in this dual capacity.
4. In case of absence or impediment of the secretary, the administration
shall appoint a person to replace him among the persons mentioned in paragraph
2.
(Competence of company secretary)
1. Besides other functions that the law or the articles of association may
assign to him, a company secretary is competent to:
a) certify the declaration by the author of legally required translations,
stating that the texts were faithfully translated;
b) function as secretary to the sessions of the general meeting and of the
administration and sign the respective minutes;
c) whenever necessary, certify that the signatures of the shareholders or of
the administrators were made in documents by themselves and in his presence;
d) ensure the completion and the signature of the attendance list of general
meetings, if it exists;
e) promote the registration and the publication of acts subject to this;
f) certify that all copies or transcripts extracted from the books of the
company are truthful, complete and up-to-date;
g) certify the total or partial content of the articles of association in
force, as well as the identity of the members of the various organs of the
company and the powers that they hold;
h) request the legalization and watch over the safekeeping, updating and
order of the books of the company;
i) ensure that all books that must be made available for consultation by
shareholders or third parties are available for at least two hours in each
business day, during business hours and in their place of safekeeping as
mentioned in the registration;
j) ensure that up-to-date copies of the articles of association, the
resolutions of the shareholders and of the administration, as well as the
entries in force in the book of registration of liens, charges and guarantees,
are delivered or sent, within a maximum time limit of eight days, to persons
who, having the right to request these, have done so.
2. The certifications made by the secretary under subparagraphs c), f) and g)
of the previous paragraph replace certificates from the commercial register for
all legal purposes.
SUPERVISORY ORGAN
(Supervisory board and single supervisor)
1. The supervision of a company is the competence of a supervisory board made
of three members; the articles of association can determine its replacement by a
single supervisor.
2. A member of the supervisory board or the single supervisor must either be
an accounting auditor or a firm of accounting auditors.
3. A firm of accounting auditors which is part of a supervisory board shall
appoint a shareholder or an employee, who in any case must be an accounting
auditor, to exercise the functions conferred upon it within the company.
4. The other members of the supervisory board shall be individuals with full
legal capacity.
(Impediments)
1. The following cannot be members of a supervisory board or a single
supervisor:
a) the administrators and the company secretary;
b) any employee of the company or any person who is paid any remuneration by
the company, other than for the exercise of the functions of member of the
supervisory board or single supervisor;
c) spouses or persons related by consanguinity or affinity up to and
including the third degree in relation to the persons mentioned in the previous
subparagraphs.
2. An accounting auditor or firm of accounting auditors who is the single
supervisor or a member of the supervisory board cannot be a shareholder of the
company.
3. The supervening of any of the impediments mentioned in the previous
paragraphs causes the automatic lapse of the appointment.
(Election and dismissal of members of supervisory board or single supervisor)
1. Members of the supervisory board or the single supervisor, with the
exception of the case mentioned in subparagraph f) of paragraph 3 of article
179, are elected in an ordinary general meeting and remain in office until the
following ordinary general meeting; the president shall be chosen in such
election.
2. The members of the supervisory board and the single supervisor can be
re-elected.
3. The members of the supervisory board and the single supervisor can be
dismissed by means of a resolution by shareholders taken in a general meeting,
provided that there is just cause for the dismissal, but only after they have
been
given an opportunity in that meeting to state the reasons for their actions and
omissions.
(Competence of supervisory board or single supervisor)
1. The supervisory board or single supervisor has competence to:
a) supervise the administration of the company;
b) verify the regularity and updating of the books of the company and of the
documents supporting the entries;
c) whenever deemed convenient and using the method thought adequate, verify
the existing cash and the stocks of any type of goods or valuables belonging to the
company or received by it as guarantee, for deposit or in any other manner;
d) verify the accuracy of the annual accounts;
e) verify if the appraisal criteria adopted by the company produce a correct
appraisal of the assets and liabilities and of the results;
f) prepare annually a report on its supervisory action and give an opinion on
the balance sheet, the profit and loss account, the proposal for the application
of results and the report of the administration;
g) demand that the books and accounting registers enable a simple, clear and
precise knowledge of the operations of the company and of its patrimonial
situation;
h) perform all other obligations mentioned in the law and in the articles of
association.
2. Without prejudice to the duties of the other members of the supervisory
organ, the accounting auditor has a special duty to undertake all verifications
and examinations necessary for an accurate and complete audit and report on the
accounts, in accordance with the provisions of special legislation.
(Powers and duties of members of supervisory board or single supervisor)
1. In order to perform the obligations of the supervisory organ, the members
of the supervisory board, jointly or separately, or the single supervisor, can:
a) obtain from the administration or from the company secretary, if there is
one, the presentation of the books, records and documents of the company, for
examination and verification;
b) obtain from the administration or from the company secretary, if there is
one, any information or clarification on any matter within their respective
competence or in which any of them has intervened or has had knowledge of;
c) obtain from third parties that have made operations for the account of the
company any information necessary for the proper clarification of such
operations;
d) attend the meetings of the administration.
2. The members of the supervisory board or the single supervisor have an
obligation to:
a) attend the sessions of the general meeting;
b) attend the sessions of the administration in which the accounts of the
accounting period are considered;
c) keep confidential any facts and information that they have knowledge of,
without prejudice to the duty to report to the Public Ministry any illegal acts
punishable by criminal law;
d) inform the administration of any irregularities and inaccuracies found
and, if these are not corrected, inform the first general meeting that takes
place after the expiry of the time reasonably needed for their correction.
3. In the exercise of their functions, the members of the supervisory board
or single supervisor shall act in the interest of the company, the creditors and
the public at large, and use the diligence of a rigorous and impartial
supervisor.
(Meetings, resolutions and minutes of supervisory board)
1. The president of the supervisory board shall call and chair meetings.
2. The supervisory board meets whenever any member requests this from the
president, and at least once every three months.
3. Decisions are adopted by majority; the board can only meet with the
presence of the majority of its members, who cannot delegate their functions.
4. Minutes of meetings shall be prepared, which shall be signed by all
members present; the minutes shall mention the resolutions passed as well as a
summary report of all verifications, inspections and other steps taken by its
members since the previous meeting, and their results.
5. If there is a single supervisor instead of a supervisory board, the report
mentioned in the previous paragraph shall, at least once every three months, be
written down in the book or attached to it or in any other way inserted in it
and duly signed.
LIABILITY OF HOLDERS OF COMPANY ORGANS
(Liability of administrators towards the company)
1. Administrators are liable towards the company for damage caused to it by
acts or omissions practiced in breach of duties arising from the law or from the
articles of association, except if they prove that they acted without fault.
2. Administrators who have not participated, or who have voted against a
resolution of the administration, and who have not participated in the
respective execution, are not responsible for the damage arising from it;
administrators shall have the intention of their vote recorded in the minutes,
otherwise they shall be presumed to have voted in favor.
3. Administrators are not liable towards the company if the act or omission
is based on a resolution by shareholders, even if voidable, with the exception
of the provision of the final part of paragraph 5 of article 212, or if the
resolution was passed under their proposal.
4. The liability of administrators is joint and several; paragraph 2 of
article 192 applies to the relations among them.
(Liability restriction, limitation, renunciation and limitation of actions)
1. Any clause excluding or restricting the liability of administrators shall
be void.
2. Resolutions by which shareholders approve balance sheets and accounts do
not imply a renunciation by the company of the right to compensation against
administrators.
3. A company can only renounce the right to compensation or agree judicial
settlements [transigir] by means of an express resolution by shareholders,
passed without a contrary vote representing a minority of at least 10% of the
company capital, and only if the damage does not constitute a relevant reduction
of the creditors' guarantee.
4. The time limit for limitation of actions runs only from the moment when
the majority of the shareholders gain knowledge of the facts.
(Liability proceedings initiated by the company)
1. Liability proceedings to be initiated by the company depend upon a
resolution by shareholders passed by simple majority, and shall be initiated
within three months from the date of adoption of the resolution.
2. A resolution to initiate liability proceedings implies the dismissal of
the targeted administrators; if necessary, shareholders shall immediately
appoint special representatives of the company for the exercise of the right to
compensation.
(Liability proceedings initiated by shareholders)
1. Liability proceedings in favor of the company can be initiated by an
unlimited liability shareholder or by shareholders holding a capital
participation of no less than 10%, if the company has not yet initiated the
proceedings.
2. In the case mentioned in the previous paragraph, the intervention of the
company in the judicial proceedings shall be provoked, in accordance with procedure law.
(Liability towards creditors of the company)
1. Administrators are liable towards the creditors of the company if, in
breach of a provision of the law or of the articles of association which is
mainly or exclusively aimed at their protection, the assets of the company
become insufficient for the payment of the respective credits.
2. Whenever the company or the shareholders have not done so, the creditors
of the company can exercise the right to compensation to which the company is
entitled, if there is a serious risk of relevant reduction of the patrimonial
guarantee.
3. Paragraphs 2, 3 and 4 of article 245 apply to the liability mentioned in
paragraph 1.
(Direct liability towards shareholders and third parties)
Administrators are also liable, in accordance with general rules, towards
shareholders and third parties, for damage caused directly to them in the
exercise of their functions.
(Liability of managers, procurators and holders of other organs)
1. The provisions of articles 245 to 250 apply to the managers and procurator
of the company, with the necessary adaptations.
2. The members of the supervisory board, the single supervisor and the
company secretary, if they exist, are liable in accordance with the provisions
of articles 245 to 250; they are also jointly and severally liable with the
administrators for the acts or omissions of the latter, if the damage would not
have taken place if they had fulfilled their obligations with due diligence.
BOOKS AND ACCOUNTS OF COMPANIES
BOOKS OF COMPANIES
(Compulsory books)
1. Besides the records and accounting books that the law declares compulsory,
companies shall have:
a) a book of minutes of the general meeting;
b) a book of minutes of the administration;
c) a book of minutes of the supervisory board, if it exists;
d) a book of registration of liens, charges and guarantees;
e) a book of registration of shares;
f) a book of registration of bond issues.
2. The book mentioned in subparagraph d) of the previous paragraph shall
mention all personal and real guarantees provided by the company, as well as all
liens and charges on company goods and also any limitations to the full
ownership or disposability of the company goods; copies of the acts or contracts
from which such situations arise shall be filed as attachments to the book.
3. The books shall always be kept at the registered office of the company or
in any other location within the Territory, provided that this location has been
communicated for this purpose to the register, by a declaration signed by the
secretary, if he exists, or by the administration of the company.
4. The books mentioned in subparagraphs a), d) and e) of paragraph 1 shall be
made available for consultation by the shareholders for at least two hours a
day, during business hours.
5. The book mentioned in subparagraph d) of paragraph 1 shall be made
available for consultation by any interested party during the period mentioned
in the previous paragraph.
6. All entries in the books mentioned in subparagraphs d) to f) of paragraph
1 that are no longer up-to-date shall be cancelled by the company secretary, if
he exists, or by the administration, in a clearly visible manner, which however
shall not prevent the reading of the entry; the responsible person shall sign
and write in the margin the date of the cancellation.
7. Any interested party can request the entry in the books of any acts
related to the company that should be mentioned in them.
8. Copies of any minutes or entries in books shall be provided to any
shareholder or interested party who requests them, and who has a right to
consult them, in the shortest time possible, and within no more than 8 days, at
a cost of no more than 1 pataca for each 100 words.
9. Shareholders have the right to consult and to obtain copies of any minutes
of sessions or resolutions of the administration, provided that three months
have elapsed from their date or, before such time limit has expired, if
authorized by the secretary, if there is one, or by the administration, on the
grounds that there is no risk of damage to the company from the disclosure of
such information.
COMPANY ACCOUNTS
(Duration, start and end of accounting period)
1. The accounting periods of companies shall be annual; they can start on April 1,
July 1, October 1 or January 1 and end, respectively, on March 31, June 30,
September 30 or December 31, depending upon how this is established in the
articles of association.
2. If the articles of association are silent, the accounting period of the company
shall start on January 1 and end on December 31.
(Annual accounts, report and proposal)
At the end of each accounting period, the administration of the company shall organize
the annual accounts and, except if all shareholders are administrators and the
company does not have a supervisory board or single supervisor, prepare a report
on the accounting period and a proposal for the apportioning of the results.
(Report of administration)
1. The report of the administration shall describe, with reference to the
annual accounts, the state and the evolution of the management of the company in
the different sectors in which the company is active, making special reference
to costs, market conditions and investments, in order to enable an easy and
clear comprehension of the economic situation and profitability achieved by the
company.
2. The report shall be signed by all administrators, except if any of them
refuses to do so, which shall be justified in writing in an attached document.
3. The annual accounts, the report on the accounting period and the proposal for the
apportioning of results shall be signed by the administrators who exercise
functions at the time of the presentation, but the former administrators shall
provide all information that may be requested from them in relation to their
tenures.
(Report and opinion of supervisory board or single supervisor)
1. The annual accounts, the report of the administration and the proposal for
the apportioning of results shall be handed to the supervisory board or single
supervisor, together with the inventories that support them, up to 30 days
before the date set for the ordinary general meeting.
2. The supervisory board or the single supervisor shall prepare the report
and opinion mentioned in subparagraph f) of paragraph 1 of article 242 by the
date on which the notices calling the ordinary general meeting are sent or
published.
3. The report shall indicate:
a) if the annual accounts and the report of the administration are exact and
complete, if they communicate in an easy and clear manner the patrimonial
situation of the company, if they comply with the law and with the articles of
association, and if the supervisory organ agrees or not with the proposal for
the apportioning of the results;
b) the steps taken and verifications made, and their results;
c) the criteria for appraisal adopted by the administration, and their
adequacy;
d) any irregularities or unlawful acts;
e) any amendments submitted to be made to the documents mentioned in
paragraph 1 and the respective justification.
4. Paragraphs 2 and 3 of the previous article apply to the report and to the
opinion of the supervisory board or single supervisor.
(Issue of bonds and public offer)
1. In companies that issue bonds or make public offers, the accounts shall
also be the object of an opinion by an accounting auditor or firm of accounting
auditors without connection with the company, or with the single supervisor, or
with any of the members of the supervisory board.
2. The previous paragraph applies to companies that exercise permanent
activity in the Territory, even if they do not have their registered office or
main administration in it.
(Consultation of annual accounts)
The annual accounts, the report on the accounting period and the proposal for the
apportioning of results, together with the report and opinion of the supervisory
board or single supervisor, if they exist, shall be made available to the
shareholders at the registered office of the company, during business hours,
from the date when the notices calling the ordinary general meeting were sent or
published.
(Judicial approval of accounts)
1. If the annual accounts and the report of the administration are not
presented to the shareholders up to three months after the end of the respective
accounting period, any shareholder can request the court to set a time limit, of no more
than 60 days, for its presentation.
2. If such presentation does not take place within the time limit set in
accordance with the final part of the previous paragraph, the court can order
the termination of the functions of any one or more administrators and order a
judicial examination in accordance with article 211, appointing a judicial
administrator with the task of preparing the annual accounts and the report of
the administration covering all the time elapsed since the last approval of the
accounts.
3. Once the balance sheet, the accounts and the report are prepared, they
shall be subject to the approval of shareholders in a general meeting called for
such purpose by the judicial administrator.
4. If the shareholders do not approve the accounts, the judicial
administrator shall petition the court, in the framework of the examination, for
their judicial approval, enclosing an opinion by an accounting auditor not
connected with the company.
AMENDMENTS TO ARTICLES OF ASSOCIATION
AMENDMENTS IN GENERAL
(General principles)
1. Shareholders are competent to pass amendments to the articles of
association, except if the law provides otherwise.
2. If the consequence of the amendment is an increase to the payments imposed
by the articles of association upon shareholders, such imposition shall bind
only those shareholders who expressly agreed to such increase.
3. Amendments to the articles of association shall be drafted in one of the
official languages of the Territory.
INCREASE OF CAPITAL
(Types and limits)
1. The capital of a company can be increased by means of new contributions or
by the incorporation of available reserves.
2. It is not possible to pass an increase of capital until the initial
company capital or the capital from a previous increase is fully paid.
(Requirements of resolution)
A resolution increasing the capital shall expressly mention:
a) the type and the amount of the increase of capital;
b) the nominal value of the new company participations;
c) the time limits for the payment of the capital participations arising from
the increase;
d) the reserves to incorporate, if the increase of capital is done by
incorporation of reserves;
e) whether only shareholders participate in the increase and under what
conditions, or if it will be open to third parties, namely through a public
offer;
f) if new shares are created or if the nominal value of the existing ones is
increased.
(Increase by means of new entries)
A resolution of increase of capital by means of new entries can only allow a
delay in payment of participations within the limits set by the law.
(Increase by means of incorporation of reserves)
1. If it is not approved in the general meeting that approves the accounts of
the accounting period or in the following 60 days, an increase of capital by
incorporation of reserves can only take place with the approval of a special
balance sheet, organized, approved and registered in accordance with the rules
of the annual balance sheet.
2. The company's own shares participate in the increase, except if there is a
resolution by shareholders to the contrary.
3. If there are company participations subject to usufruct, the usufruct
shall apply in the same manner to the new participations arising from the
increase by incorporation of reserves.
REDUCTION OF CAPITAL
(Requirements of reduction resolution)
1. A resolution approving a reduction of capital shall clarify its purpose as
well as the respective type, mentioning if the nominal value of the
participations is reduced or if there is extinction of participations and, in
the latter case, which are the shares affected by the reduction.
2. A reduction not motivated by losses can only be approved if the net worth
of the company will become at least 20% in excess of the sum of the capital, the
legal reserve and the compulsory reserves created in accordance with the
articles of association, certified through a report to be prepared by an
accounting auditor or firm of auditors, which shall be attached to the
resolution.
(Registration and publication of resolution)
A resolution approving a reduction of company capital shall be registered and
published.
(Moment in which reduction of company capital takes effect)
Company capital is reduced with the registration of the resolution on the
reduction of the capital.
(Protection of company creditors)
1. Guarantees shall be provided to creditors whose credits were created
before the publication of the resolution on the reduction and who cannot claim
payment yet, provided that they demand such guarantees within 30 days from such
publication; the creditors shall be informed of the right mentioned in this
paragraph in the publication of the resolution.
2. Creditors whose credits are already guaranteed cannot exercise the right
granted to them in the previous paragraph.
3. Payments to shareholders on the basis of the reduction of capital cannot
be made before 60 days from the date of publication of the resolution of
reduction, and only after guarantees have been given or payment made to
creditors who have demanded it.
(Reduction motivated by losses)
1. The previous article does not apply:
a) if the reduction is motivated by losses;
b) if the purpose of the reduction is the creation or the reinforcement of
the legal reserve.
2. In the cases mentioned in the previous paragraph the shareholders are not
released from their obligations of payment of capital.
(Simultaneous increase and reduction of capital)
1. It is allowed to approve the reduction of capital to an amount lower than
the minimum required by the law for the respective type of company if such
reduction is expressly subject to the condition of an increase of capital, to an
amount equal or higher than that minimum, to be made within 60 days from such
resolution.
2. The provisions on minimum capital for each type of company do not affect
the validity of a resolution of reduction if the transformation of the company
into a type that can legally have a capital of the reduced amount is
simultaneously approved.
MODIFICATION OF COMPANY OBJECT
(Rights of creditors)
If the effect of an amendment of the articles of association is an essential
modification of the object, or if it involves a complete change of activity, any
creditor of the company can claim the early payment of his credits within 30
days from the registration of the resolution, except if there is a prior
agreement to the contrary.
MERGER OF COMPANIES
(Concept and types)
1. Two or more companies, even if they are of different types, can merge into
a single one.
2. The merger can be done:
a) by the global transfer of the patrimony of one or more companies to
another one, and the attribution to the shareholders of the former of parts or
shares in the latter;
b) by the creation of a new company, to which the patrimonies of the merged
companies are globally transferred, the shareholders of the latter being given
parts or shares in the new company.
(Merger project)
1. The administrations of companies wanting to merge shall prepare together
a merger project which, besides other elements necessary or convenient for the
perfect knowledge of the operation aimed at, shall mention:
a) the type, motivation, conditions and objectives of the merger, in relation
to all participating companies;
b) the firm, registered office, amount of capital and registration number of
each of the companies;
c) the participation that any of the companies may have in the capital of the
other;
d) especially prepared balance sheets of the intervening companies,
mentioning the value of the elements of the assets and liabilities to be
transferred to the absorbing company or to the new company;
e) the parts or shares to be allocated to shareholders of the company being
absorbed in accordance with subparagraph a) of paragraph 2 of the previous
article, or of the companies being merged in accordance with subparagraph b) of
that paragraph and, if any, the amount in money to be paid to the same
shareholders, specifying the ratio of exchange of the company participations;
f) the draft amendment to be introduced in the articles of association of the
absorbing company, or the draft articles of association of the new company;
g) the measures to protect the rights of creditors;
h) the rights ensured by the absorbing company or by the new company to
shareholders holding special rights;
i) in mergers in which the absorbing company or the new company is a public
company, the types of shares of such companies and the date from which the
shares will be handed over and will provide a right to profits, as well as the
modalities of this right.
2. The project, or an attachment to it, shall indicate the appraisal criteria
adopted, as well as the bases of the exchange ratio mentioned in subparagraph e)
of the previous paragraph.
(Supervision of project)
1. The administration of each of the participating companies shall
communicate the merger project and its attachments to the respective supervisory
board or single supervisor, to have their opinion or, in their absence, to an
accounting auditor or firm of auditors.
2. The supervisory board or the single supervisor, the accounting auditor or
firm of accounting auditors can request from all participating companies any
information and documents needed, and can undertake necessary verifications.
(Registration of project and call of general meeting)
1. A merger project shall be submitted for resolution to the shareholders of
each of the participating companies, in a general meeting, irrespective of the
type of company; the general meetings shall be called after the registration of
the merger project and shall meet no earlier than 30 days from the date of
sending or publication of the call, in accordance with paragraph 2, depending
upon which takes place later.
2. A public notice of the registration of the merger project shall be made
according to the form provided for in article 326, stating that the project and
the attached documentation can be consulted by the respective shareholders and
creditors at the registered office of each company and stating the dates for the
general meetings.
(Consultation of documents)
1. From the publication of the notice required by the previous article, the
shareholders and creditors of any of the companies participating in the merger
have the right to consult the following documents in the registered office of
each company, and to obtain, free of charge, a full copy of:
a) the merger project;
b) reports and opinions prepared by the supervisory organs or by accounting
auditors.
2. They can also consult the accounts, reports of the organs of
administration, reports and opinions of the organs of supervision and
resolutions of the general meetings on those accounts, covering the last three
accounting periods.
(General meeting)
1. In the meeting, the administration shall start by expressly declaring if,
since the elaboration of the merger project, there has been any relevant change
to the factual elements on which it is based and, in the affirmative case, what
are the modifications of the project that are necessary.
2. If there has been a relevant change in accordance with the previous
paragraph, the general meeting shall decide if the merger process must be
restarted, or if it will continue with the consideration of the proposal.
3. The proposals presented to the various general meetings must be strictly
identical; any modification introduced by a general meeting is considered as a
rejection of the proposal, without prejudice to its renewal.
4. Any shareholder can demand, in the general meeting, any information about
the participating companies that may be indispensable for him to understand the
merger project.
(Resolution)
1. In the case of lack of special provision, the resolution shall be taken in
accordance with the terms prescribed for the amendment of the articles of
association.
2. The resolution can only be executed after the assent of the prejudiced
shareholders is obtained, if it:
a) increases the obligations of all or some shareholders;
b) affects special rights that some shareholders hold;
c) modifies the proportion of their company participations in relation to the
other shareholders of the same company, except to the extent to which such
modification arises from payments demanded in order to comply with legal
provisions imposing a determined or minimum value for each unit of
participation.
3. If any of the participating companies has various categories of shares,
the merger resolution of the respective general meeting is only effective after
its approval by a special meeting of each category.
(Participation of a company in the capital of another)
1. If any of the companies holds a participation in the capital of another,
it cannot make use of a number of votes higher than the sum of those of all the
other shareholders.
2. For the purpose of the previous paragraph, to the votes of the company
shall be added the votes of other companies controlled by the former in
accordance with article 212, as well as the votes of persons acting in their own
name but for the account of some of these companies.
3. As an effect of a merger by absorption, the absorbing company shall not
receive parts or shares of itself in exchange for parts or shares in the
absorbed company which are held either by the former or by the latter or by
persons acting in their own name but for the account of any of these companies.
(Right to voluntary exoneration from a company)
1. If the law or the articles of association grant to a shareholder who has
voted against a merger project the right to exonerate himself from the company,
the shareholder can demand, within the 30 days following the date of the
publication required by paragraph 1 of article 282, that the company acquires,
or have a third party acquire, his company participation.
2. Except if otherwise stipulated in the articles of association, or if there
is an agreement of the parties, an accounting auditor without connection with
the merging companies shall determine the value of the participation.
3. The company must pay the value set within 90 days; if not, the shareholder
can request its dissolution.
4. The right of the shareholder to transfer his participation by other means
is not affected by the provisions of the previous paragraphs; the limitations
prescribed by the articles of association of the company do not apply to such
transfer, if effected within the time limit there mentioned.
(Merger document)
1. Once the merger has been approved by resolution of the general meeting of
each of the participating companies, the respective administrations shall sign
the respective merger document.
2. If the merger takes place through the creation of a new company, the
provisions that apply to such creation shall be complied with, except if
otherwise arises from their justification.
(Publicity of merger and opposition of creditors)
1. The administration of each of the participating companies shall promote
the registration and publication of the resolution that approves the merger
project.
2. Creditors of the participating companies can judicially oppose the merger
within 30 days from the last publication done in accordance with the previous
paragraph, based on the damage arising from it to the payment of their credits,
if the latter are prior to such publication.
3. The creditors mentioned in the previous paragraph shall be given notice of
their right of opposition in the publication mentioned in paragraph 1 and, if
their credits are mentioned in books or documents of the company or are by any
other means known to it, by registered mail.
(Effects of opposition)
1. Judicial opposition by any creditor prevents the registration of the
merger until any of the following facts have taken place:
a) it is judged without merit, by a decision that can no longer be appealed,
or, if the case was dismissed for procedural reasons [absolvição da
instância], if the opposing creditor does not initiate new proceedings within
30 days;
b) the opposing creditor withdraws the proceedings;
c) the company has paid the opposing creditor or posted bail of an amount set
by agreement or by judicial decision;
d) the opposing parties agree to the registration;
e) the amounts due to the opposing parties are judicially deposited
[consignação em depósito].
2. If the court allows the opposition, the court shall order the
reimbursement of the credit of the opposing party or, if it cannot yet be
demanded, the posting of a bail.
3. The provisions of the previous article and of paragraphs 1 and 2 do not
obstruct the application of contractual clauses that give the creditor the right
to the immediate payment of his credit if the debtor company merges with another
company.
(Bondholder creditors)
1 The provisions of articles 282 and 283 apply to bondholder creditors, with
the modifications mentioned in the following paragraphs.
2. Meetings of the bondholders of each company shall take place; they shall
be called by the common representative for each issue, in order to assess the
merger in relation to possible damage to these creditors; resolutions shall be
adopted by absolute majority of the bondholders present or represented.
3. If the meeting does not approve the merger, the right of opposition shall
be collectively exercised through the common representative.
4. The holders of obligations, convertible or not into shares, enjoy, in
relation to the merger, the rights that have been attributed to them for such
case; if no specific rights were attributed to them, they enjoy the right of
opposition, in accordance with this article.
(Holders of other instruments)
The holders of instruments other than shares, to which special rights are
inherent, shall continue to enjoy at least equivalent rights in the absorbing
company or in the new company, except if:
a) it is decided, in an extraordinary meeting of the instrument holders and
by absolute majority of the number of each type of instrument, that the said
rights can be modified;
b) if the special extraordinary meeting is not foreseen in the law or in the
articles of association, all bearers of each kind of instrument individually
assent to the modification of their rights;
c) the merger project foresees the acquisition of such instruments by the
absorbing company or by the new company, and the conditions for such acquisition
are approved, in an extraordinary meeting, by the majority of the bearers
present or represented.
(Registration of merger)
After the period mentioned in paragraph 2 of article 282 has elapsed without
any opposition or any of the facts mentioned in paragraph 1 of article 283
having taken place, the administration of any of the companies participating in
the merger, or the new company, shall proceed with the commercial registration
of the merger.
(Effect of registration)
With the registration of a merger:
a) the absorbed companies or, in the case of creation of a new company, all
merged companies, are extinguished; their rights and obligations are transferred
to the absorbing company or to the new company;
b) the shareholders of the extinguished companies become shareholders of the
absorbing company or of the new company.
(Condition or term)
If the effects of a merger are dependent upon a suspensive condition or a
suspensive term and, before the occurrence of such, relevant modifications take
place in the factual elements on which the resolutions were based, the general
meeting of any of the companies can decide to petition the court for the
rescission or modification of the merger, its effect being delayed until the
moment when the decision pronounced in the proceedings can no longer be
appealed.
(Liability arising from merger)
1. The administrators, the members of the supervisory board or single
supervisor and the secretary of each of the participating companies are jointly
and severally liable for damage caused by the merger to the company and to its
shareholders and creditors, if they have not observed the diligence of a
systematic and ordered manager in verifying the patrimonial situation of the
companies and in concluding the merger.
2. In relations among themselves, the co-obliged parties are liable in
accordance with paragraph 2 of article 192.
3. The extinction of companies caused by a merger does not hinder the
exercise of the right to compensation mentioned in paragraph 1, nor of their
rights and obligations arising from the merger; such companies are considered to
be in existence for this purpose.
(Enforcement of liability in case of extinction of company)
1. The rights mentioned in the previous article, if relating to companies
mentioned in its paragraph 3, are exercised by a special representative, whose
appointment can be requested from the court by any shareholder or creditor of
the company.
2. Such special representative shall invite the shareholders and creditors of
the company, by means of a notice published according to the form prescribed for
company notices, to claim their rights of compensation, within a time limit
stated by him, of no less than 30 days.
3. Compensation granted to the company shall be used in the payment of the
respective creditors, to the extent that they have not been paid or guaranteed
by the absorbing company or by the new company; any excess shall be distributed
by the shareholders, in accordance with the rules applicable to the distribution
of the balance of a liquidation.
4. Those shareholders and creditors who have not timely claimed their rights
are not included in the sharing mentioned in the previous paragraph.
5. The special representative has a right to reimbursement for expenses that
he has justifiably made and to remuneration for his activity; the court, using
prudent discretion, shall determine the amount of the expenses and the
remuneration, as well as the extent to which they shall be paid by the
shareholders and interested creditors.
(Absorption of a company totally controlled by another)
1. The previous articles shall apply, with the exceptions mentioned in the
following paragraphs, to the absorption by a company of another of whose parts
or shares the former is the only holder, directly or for its account but under a
separate name.
2. In this case the provisions on the exchange of company participations, on
the reports of company organs of the absorbed company, and on the liability of
those organs shall not apply.
3. The merger document can be prepared without previous resolution by the
general meetings, provided that the following cumulative requirements are met:
a) the merger project indicates that if the respective call is not requested
in accordance with subparagraph d) the document shall be signed without previous
resolution by the general meetings;
b) the publicity required by article 275 has been made at least two months in
advance in relation to the date of the document;
c) the shareholders were able to gain knowledge, at the registered office, of
the documentation mentioned in article 276, at least from the eighth day
following the publication of the merger project, and they have been informed of
this in the same project or simultaneously with its communication;
d) up to 15 days before the date set for the preparation of the document, no
general meeting to decide upon the merger has been requested by shareholders
holding 5% of the company capital.
(Nullity of merger)
1. The nullity of a merger can only be declared on the basis of lack of a
document or of a previous declaration of nullity or annulment of any of the
resolutions of the general meetings of the participating companies.
2. Proceedings to declare the nullity of a merger can only be initiated while
the existing defects have not been corrected, but not after six months from the
publication of the registered merger, or from the publication of a judicial
decision that can no longer be appealed declaring void or voiding any of the
resolutions of the said general meetings.
3. The court shall not declare the nullity of a merger if the defect
producing it is corrected within a time limit that it shall state.
4. A judicial declaration of nullity is subject to the same publicity
required for a merger.
5. The effects of the acts practiced by the absorbing company, after the
entering of a merger in the register and before the decision declaring nullity,
are not affected by this declaration, but the absorbed company is jointly and
severally liable for the obligations contracted by the absorbing company during
that period; the merged companies are liable in the same manner for the
obligations contracted by the new company, if the merger is declared void.
DIVISION OF COMPANIES
GENERAL PROVISIONS
(Concept and types)
1. A company is allowed to:
a) separate part of its patrimony in order to create a new company with it;
b) dissolve itself and divide its patrimony, each of the resulting parts
being used to create a new company;
c) separate parts of its patrimony or dissolve itself, dividing its patrimony
into two or more parts, in order to merge it with existing companies or with
parts of the patrimony of other companies, separated by identical processes and
with the same purpose.
2. Division can take place even if the company is in liquidation.
3. The companies resulting from a division can be of different types from the
divided company.
(Division project)
1. The administration of a company that is to be divided or, in the case of a
division-merger, the administrations of the participating companies, shall
together prepare a division project which, besides all other elements necessary
or convenient for the perfect knowledge of the operation aimed at, shall
mention:
a) the modality, motivation, conditions and objectives of the division in
relation to all participating companies;
b) the firm, registered office, capital value and registration number of each
of the companies;
c) any participation that any of the companies may have in the capital of
another;
d) the complete enumeration of the assets to be transferred to the absorbing
company or to the new company, and the values attributed to these;
e) in the case of a division-merger, the balance sheet of each of the
participating companies, prepared in accordance with subparagraph d) of
paragraph 1 of article 273;
f) the parts or shares of the absorbing company or of the new company as well
as, if applicable, the amounts in money to be distributed to the shareholders of
the company being divided, specifying the ratio of exchange of the company
participations and the basis for this ratio;
g) the categories of shares of the companies arising from the division, if
they are public companies, and the dates from which such shares shall be made
available;
h) the date from which the new participations grant the right to receive
profits, as well as any possible specificities related to this right;
i) the rights ensured by the companies resulting from the division to
shareholders of the divided company who hold special rights;
j) the project for the amendments to be introduced in the articles of
association of the absorbing company or the draft articles of association of the
new company;
l) measures to protect the rights of creditors;
m) measures to protect third party non-shareholders' rights to participate in
the profits of the company;
n) the attribution of the contractual position of the company or intervening
companies arising from labor contracts concluded with their employees, which are
not extinguished as a result of the division.
2. The project or an attachment to it shall indicate the appraisal criteria
adopted, as well as the bases of the exchange ratio mentioned in subparagraph f)
of the previous paragraph.
(Applicable provisions)
The provisions on the merger of companies apply to division, with the
necessary adaptations.
(Exclusion of novation)
The attribution of debts of a divided company to the absorbing company or to
the new company does not cause novation.
(Liability for debts)
1. A divided company is jointly and severally liable for the debts that, as a
result of the division, have been attributed to the absorbing company or to the
new company.
2. Companies benefiting from the entries resulting from a division are
jointly and severally liable, up to the value of such contributions, for debts
of the divided company created prior to the registration of the division.
3. A company that pays debts that have not been attributed to it as a result
of the joint and several liability prescribed in the previous paragraphs has a
right of return against the main debtor.
SIMPLE DIVISION
(Requirements of simple division)
1. The division mentioned in subparagraph a) of paragraph 1 of article 293 is
not possible:
a) if the value of the patrimony of the divided company becomes lower than
the sum of the value of the company capital, the legal reserve and the
compulsory reserves created in accordance with the articles of association, and
the corresponding reduction of the company capital is not effected before or
together with the division;
b) if the capital of the company to be divided is not fully paid.
2. For the purpose of subparagraph a) of the previous paragraph, in private
companies the amount of the supplementary payments made by the shareholders and
not yet refunded shall be added.
3. The verification of the conditions required in the previous paragraphs
shall be expressly mentioned in the opinions and reports of the organs of
administration and supervision of the companies, as well as by the accounting
auditor or firm of accounting auditors.
(Separable assets and liabilities)
1. In a simple division, only the following elements can be separated for the
creation of the new company:
a) participations in other companies, whether they are all or part of those
that the company to be divided holds, and only for the formation of a new
company whose exclusive object is the management of company participations;
b) assets that are coordinated within the patrimony of the company to be
divided so that they form an autonomous unit.
2. In the case of subparagraph b) of the previous paragraph, it is possible
to attribute to the new company the debts that are economically related with the
creation or the functioning of the unit there mentioned.
(Capital reduction of company to be divided)
The capital reduction of the company to be divided is only subject to general
rules to the extent to which it does not remain within the global amount of the
capital of the new companies.
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