The event of spontaneous exit or withdrawal of a shareholder from a company in Brazil always goes through the same discussion: how to compensate the dissenting shareholder?
This discussion seems inevitable, but there are objective ways to avoid it, allowing the departure of a partner – with the consequent assessment of assets – to be a safe move. Two relevant issues must be faced: the amount to be paid for the equity interest and the receipt, or not, of future profits.
The Brazilian Superior Court of Justicel (STJ) has already expressed its opinion on the matter, taking a position that (i) for the payment of shareholding the criteria must be expressly provided for in the bylaws, under penalty of, in case of omission, the amounts being raised exclusively with based on the company’s asset value; (ii) in the case of future profits, these may only form part of the dissenting partner’s calculation basis when expressly provided for the bylaws.
We understand that there are 2 ways to avoid this insecurity:
1. Bylaws: as it is the document that sets out the basic rules of the company, it may contain specific clauses on the departure of a partner and payment of assets, not only in relation to the calculation method, but also the payment method.
2. Shareholders Agreement: in addition to the bylaws, the Agreement may provide for details of the exit, such as (i) the form of valuation to be used in the calculation to determine the shares; (ii) the role of each partner within the company and the possibility of different forms of remuneration. For the payment of future profits, for example, it is possible to establish different forecasts for each partner, depending on the position they occupy in the company. Remembering that the Agreement is a private instrument, thus preventing third parties from having access to the company’s internal rules.
The important thing is that these documents contain clear and non-abusive rules, as the STJ’s jurisprudence is unique in indicating that what was established between the partners must be maintained, with no room for discussions on sensitive topics such as these and of high complexity.
