The departure of a relevant shareholders or partner – spontaneously or by withdrawal – always brings insecurities to a company.
The most important thing about this movement is not to harm the company, making an exit that does not impact the business, and that also does not generate future discussions between the remaining partners and the one who left.
Even when a dispute seems inevitable, there are objective ways to deal with the situation in Brazil, allowing the exit to occur in a safe and structured manner.
To avoid uncertainty and ensure a clear transition, the main way is to use the correct Brazilian corporate instruments to define, from the outset, the rules for the exit of relevant shareholders or partners.
1. Articles of Association/Bylaws: as it is the document that brings the basic rules of the company, it may contain specific clauses on the departure of a partner and payment of assets, establishing calculation criteria for calculating the values of the equity interest, such as: historical value of the quotas, calculation of net equity, or through valuation. Here it is still possible to establish the form of payment to the withdrawing partner: in cash, in installments, or even by the delivery of the company’s assets (tangible or intangible).
2. Partners/Shareholders’ Agreement: in addition to the articles of association, the Agreement may provide for specific points for the exit, such as (i) details in the form of pricing of quotas in cases where the calculation will be made by valuation, especially in those in which multiple or specific discounts will be applied; (ii) the role of each partner within the company and the possibility of different forms of remuneration for the payment of future profits, depending on the position of this partner at the company; (iii) clear non-competition and non-solicitation criteria, especially in cases where the withdrawing partner had an operational role in the company; (iv) prohibition of conduct and disclosure of information about the company or the partners who remain in the business, thus preventing the company from suffering future losses after the partner leaves/withdraws.
The important thing is that these documents contain clear and non-abusive rules to be valid in the Brazilian judiciary, leaving no room for discussions on sensitive and highly complex issues such as these. Protecting the company in the event of a partner leaving is not only a legal issue, but also a strategic one.
With these rules clearly defined from the outset and the appropriate use of corporate instruments, it is possible to transform a potentially delicate moment into a safe transition, without negatively impacting the business.
