Ano: 2021

Entendendo o acordo de acionistas: direito de preferência e direito de primeira oferta

Diferentemente das sociedades anônimas com ações listadas em bolsa, que têm a livre circulação de ações como princípio basilar, o artigo 36 da Lei 6.404, de 15 de dezembro de 1976, conforme alterada (Lei das S.As.), permite que sejam impostas algumas limitações à circulação das ações de emissão de sociedades anônimas de capital fechado…

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December 2021

_the december│2021 edition of our Newsletter has the following highlight:

– Understanding the Shareholders’ Agreement: Strategies for Preventing Deadlocks

–2021 was marked by progress in reducing bureaucracy in business activity and simplifying its procedures NEWSLETTER Dec 2021

_Understanding the Shareholders’ Agreement: Strategies for Preventing Deadlocks

 

As a rule, shareholders’ agreements contain clauses for the resolution of deadlocks in order to define means for the resolution of conflicts among the shareholders of a company, mitigating possible risks and losses in the development of its activities. Considering that there are several ways to solve impasses, the provision of a resolution clause depends on the analysis of the context in which the company is inserted and the peculiarity of each case.

Among the commonly adopted methods of resolving impasses, we find more lenient and agile mechanisms such as negotiation, mediation and conciliation, in which conflict decisions are made by the parties themselves. On the other hand, there are more rigorous alternatives such as arbitration and judicial clauses, which depend on a third party to solve the deadlock and usually extend over a longer period of time and are considerably more expensive.

There are also other practices, known in North American law as “deadlock provisions”, which may be applied in Brazilian law, although there is no specific provision regulating such means of solutions in our legislation. In this context, we have the “buy or sell” or “shotgun” clauses, which consist in call and put option clauses. They are used in certain deadlock situations and their purpose is to put an end to the partnership by means of the withdrawal of one of the shareholders according to a pre-agreed mechanism. These clauses can have different mechanisms depending on the interests and characteristics of the parties involved and their partnership.

The most common “shot-gun” mechanism is known as “Russian Roulette”, in which any shareholder (“offeror”) has the right to make a bid to sell his shares to another shareholder (“offeree”) or to buy the offeree’s shares at a certain price and the offeree must choose between buying the offeror’s shares or selling his shares to him under the terms of the bid.

Shotgun mechanisms do not always work for all situations and need to be carefully thought out and adapted to each specific situation in order to ensure their effectiveness. For instance, when there is a difference in assets between the parties, this may result in a negotiating disadvantage for the less favored party in triggering a shotgun clause. In these situations, it is common to adjust standard clauses to provide for mechanisms that can minimize this disadvantage, as it is the case with the so-called “Fairest Sealed Bid”, whereby, instead of the traditional pricing structure of a clause such as the Russian Roulette, each party puts its respective price proposal per share in an envelope and an independent third party will evaluate which proposal is closest to the market value of the share for purposes of applying the shotgun clause.

In Brazil, due to a cultural issue and to our property tradition in relation to the ownership of company’s shares, there is still some resistance in adopting “shotgun” mechanisms in shareholders’ agreements involving family companies. In fact, it is not uncommon to face situations where, due to the characteristics and interests of the parties, the clauses to solve impasses in relation to family companies end up being clauses that foresee phased negotiation structures and, in the absence of an agreement, the maintenance of the status quo.

Nevertheless, the scenario and characteristics of each company and its shareholders must always be analyzed to define the best conflict resolution mechanism to be used in each case.

The text above was published in legislation and market session of Capital Aberto on December 09, 2021, and can be accessed in Portuguese through the link below:

https://legislacaoemercados.capitalaberto.com.br/entendendo-o-acordo-de-acionistas-estrategias-para-prevencao-de-impasses/

 

_2021 was marked by progress in reducing bureaucracy in business activity and simplifying its procedures NEWSLETTER Dec 2021

 

This year, the sanction of Law 14.195/2021, resulting from the Provisional Measure (MP) 1.040/2021, stands out as a major step towards reducing bureaucracy in business activity in Brazil. This Law has as its main objective the reduction and simplification of procedures required for starting a business in the country. It has a goal of fostering economic growth, reducing complexity and time needed to open new businesses, in addition to enabling a greater attraction of foreign investment throughout of the coming years.

An important change related to this simplification is the waiver of notarization in corporate acts to be registered with the boards of trade, including powers of attorney.

Also, among other measures, we highlight:

  • Corporate name. (i) possibility for the businesspersons or legal entity to choose to use the National Registry of Legal Entities (CNPJ) number as a corporate name; (ii) end of the protection of the corporate name of a company without movement for ten years.
  • Simplifying the setting up business. Reform of the existing system of the National Network for Simplification of Registration and Legalization of Companies and Businesses (“REDESIM”), which, through its website, provide users, free of charge, research on the registration steps, change and termination of business individuals and legal entities.
  • Virtual Address. Possibility of registering entrepreneurs and legal entities without a physical establishment.
  • Risk assessment of the company’s activities. For companies that carry out an activity classified as medium risk, the business license and licenses will be issued automatically, without human analysis – as already happen in the case of low-risk companies.
  • Electronic Books. Closed companies are entitled to replace certain physical corporate books for electronic registers.
  • Archiving of Original Corporate Documents. The boards of trade will be able to eliminate any scanned and digitally archived corporate acts and documents. Before deletion, the company, through its partner, director, attorney or other interested parties, has a period of 30 days to remove the original document at no additional cost.
  • Integrated Asset Recovery System. Institution of the Integrated Asset Recovery System (Sira), comprising a set of instruments, mechanisms and initiatives designed to facilitate the identification and location of assets and debtors, as well as the restriction and sale of assets. The system aims to improve the effectiveness and efficiency of asset recovery actions.

 

Entendendo o acordo de acionistas: estratégias para prevenção de impasses

Em regra, os acordos de acionistas contêm cláusulas de soluções de impasses a fim de definir meios para a resolução de conflitos entre os sócios de uma sociedade, mitigando eventuais riscos e prejuízos no desenvolvimento das suas atividades.

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November 2021

_the november│2021 edition of our Newsletter has the following highlight:

– CVM warns publicly held company’s officer for irregularities in the management of Stock Option Plan

– Understanding Shareholders’ Agreements and binding managers’ votes

_CVM warns publicly held company’s officer for irregularities in the management of Stock Option Plan

 

On October 14, 2021, the Brazilian Securities and Exchange Commission (“CVM”) judged CVM Sanctioning Process SEI 19957.003480/2021-22 to examine the responsibility of an officer and members of the Board of Directors of a publicly held company for an alleged breach of fiduciary duties in the performance of their attributions, in violation of articles 153 and 154 of the Brazilian Corporation Law.

The accusation arose from a request to interrupt an Extraordinary Shareholders’ Meeting by shareholders of the company, accompanied by several complaints, among them, the alleged irregularities in the management of the stock options plan (“Stock Options”).

The officer was accused of failing to perform his attributions in accordance with the company’s interests by means of: (i) failing to recognize the termination of Stock Options granted to officers upon their dismissals; and (ii) celebrating amendments to Stock Options agreements with employees under different conditions than those provided by the plan approved at the company’s shareholder meeting, particularly regarding the extension of the term for exercising the options in the event of dismissal by the company.

Regarding the first accusation, the officer was unanimously absolved by CVM’s board for lack of evidence. Regarding the second accusation, the reporting director of the case, Fernando Caio Galdi, understood that there was a violation of article 154 of the Brazilian Corporation Law, for the reasons summarized below:

• In the terms of article 168, 3rd paragraph, of the Brazilian Corporation Law, the granting of stock options to managers and employees of publicly held companies can only occur in accordance with a plan approved by shareholders in a shareholders’ meeting, therefore, the granting of stock options under conditions other than those foreseen in a plan approved by the company’s shareholders’ meeting is forbidden.

• The reporting director stated that it is perfectly legitimate for the shareholders’ meeting to establish only general guidelines regarding the most relevant aspects that must be observed when granting stock options, giving certain discretion to management to execute the stock option agreements, within the approved general premises. However, in the case in question, the plan provided a clear, objective and direct rule regarding the term for exercising the options in the event of dismissal by the company, consequently, said rule could not be relativized by the company’s management.

• In cases of alleged violation of art. 154, caput, of the Brazilian Corporation Law, according to the reporting director, CVM’s board must analyze the justifications brought by the manager to carry out certain transactions, evaluating if they are consistent with the social interest, avoiding excessively invasive approaches concerning the merits of the decisions which were taken.

• In the analyzed case, however, the reporting director declared that is up to who is judging the case to verify whether the conditions provided in the amendments were compatible or not with those approved by the company’s shareholders. Being incompatible with the provisions of the Brazilian Corporation Law the recognition that an officer would be more legitimate than the shareholders to determine which decision would best align with the company’s corporate interest.

• The conditions foreseen in the amendments regarding the term for exercising the stock options were different from those provided for in the approved plan, and by executing the plan approved by the shareholders’ meeting under conditions different from the original terms, the shareholders’ meeting’s authority was disregarded, at least in part.

Therefore, CVM’s board decided, by majority, to follow the vote of the reporting director and condemn the officer to a warning sentence.

The members of the board of directors were also accused of breach of the responsibility to exercise their duty of diligence, due to the lack of supervision of the officer’s actions as detailed above, however, the reporting director understood that it would not be reasonable to expect the defendants to review all the individual stock option agreements, nor the requests for exercise said stock options, except if warning signs that the plan was not being executed within the approved premises were identified, nevertheless, this exception was not proven when analyzing the case.

Regarding the accusation against the members of the board of directors, CVM’s board unanimously decided for their absolution.

More information regarding CVM Administrative Proceeding can be accessed in Portuguese through the link below:

https://tinyurl.com/bdz5y2s3

 

_Understanding Shareholders’ Agreements and binding managers’ votes

 

Following the series of articles on shareholders’ agreements foreseen in article 118 of Law 6.404, of December 15, 1976 (Brazilian Corporation Law), we will address the political rights of shareholders specifically regarding the election of managers and the potentially binding their votes.

 

Election of managers

During the negotiation of shareholders’ agreements, it is not unusual to encounter discussions about the number of seats on the board of directors that will be filled by each shareholder and even how the election of officers will take place. It is common for them to specify which shareholder will appoint the chief executive officer, the chief financial officer, or another officer relevant to the business. In addition, in certain structures it is possible to identify clauses that require board members to vote on certain matters in accordance with voting instructions determined by the shareholders in a prior meeting.

Regarding the election of the members of the board of directors, the Brazilian Corporation Law provides as a general rule the election by majority vote of all members, with the possibility of multiple vote and separate vote for the election of members by minority shareholders. Nevertheless, it is possible that the shareholders undertake, by means of a shareholders’ agreement, to elect the members of the board of directors in a different manner, guaranteeing, for example, the right for minority shareholders to elect directors without the need for a multiple or separate vote system. This is a common request in shareholders’ agreements of family-owned companies as well as companies with investment funds as shareholders.

 

Binding of board member’s votes by shareholders

Regarding the voting orientation of directors by shareholders, including within the scope of the election of officers, the Brazilian Corporation Law expressly provides, since 2001, the possibility of binding the votes of members of the management, it states that the president of the shareholders’ meeting or of the collegiate deliberating body of the company shall not compute the vote cast in breach of a duly filed shareholders’ agreement in the company’s headquarters.

However, said legal provision has been subject of controversy since it was introduced in the law. It is argued that, by binding the managers’ vote to what has been agreed upon in a shareholders’ agreement, their freedom to vote and their independence would be put in jeopardy, in addition to their obligation to look after the company’s interests.

Faced with said controversy, there are three doctrinal conceptions on the matter:

  • favorable to binding votes: the main argument is that the shareholders’ agreement itself is representative of the corporate interest, in line with the 2nd paragraph of article 118 of the Brazilian Corporation Law, which provides that it is not possible to invoke said agreement to exempt shareholders from liability when exercising voting rights or controlling power.
  • favorable to binding votes: except for certain situations (that is, opposing to binding votes indiscriminately), among which we highlight illegality and violation of social interest.
  • against binding of managers’ votes, on the grounds that this would be incompatible with the best corporate governance practices.

Thus, although there are solid positions and arguments in the three aforementioned conceptions, the one which is favorable to binding votes with limits is the predominant one, presenting variations as to the extension and definition of such limits. Therefore, considering that managers are subject to the duties imposed by the Brazilian Corporation Law, notably the duties of diligence and loyalty, we understand that when they are faced with a binding voting guideline that may harm the company’s best interests, they should deliver their vote in a manner contrary to the voting guideline, subject to the manager’s being liable.

The text above was published in legislation and market session of Capital Aberto on October 27, 2021, and can be accessed in Portuguese through the link below:

https://tinyurl.com/2p9edf73

October 2021

_the october│2021 edition of our Newsletter has the following highlight:

– CVM Resolution 44 issued in August 2021 replaces CVM Instruction No. 358/2002

– Understanding Shareholders’ Agreements: Voting Rights

_CVM Resolution 44 issued in August 2021 replaces CVM Instruction No. 358/2002

 

In August 2021, the Brazilian Securities and Exchange Commission (“CVM”) issued CVM Resolution No. 44, which addresses the disclosure of information related to a material act or fact, the trading of securities pending an undisclosed material act or fact, and the disclosure of information related to the trading of securities (“CVM Resolution 44”), which revoked CVM Instruction No. 358/2002 (“ICVM 358”).

CVM Resolution 44, which came into force on September 1, 2021, has as its main objectives: (i) adapt the text of ICVM 358 that treats insider trading, in order to bring the provisions closer to the consolidated interpretation in CVM on the subject; (ii) make the regime of investment plans more flexible; and (iii) make the obligation of disclosure of information release policy by publicly-held companies more flexible.

While companies start the process of updating the policies of disclosure of information and trading of securities in order to reflect the new provisions introduced by CVM Resolution 44, we highlight the main changes briefly below.

 

Presumptions for characterizing the misuse of privileged information

To reflect the consolidated interpretation of the CVM board, CVM Resolution 44 provides the following relative presumptions in order to characterize the misuse of privileged information in securities trading:

• Presumption of use: The person who has traded securities with material information not yet disclosed has made use of such information in said trading. This presumption also applies to a former manager who has left the company for three months or less ago and has material, undisclosed information;

• Presumption of access and knowledge: Controlling shareholders (direct or indirect), managers and fiscal council (conselho fiscal) members, and the company itself, have access to all material information not yet disclosed. Such individuals, as well as those who have a commercial, professional or trust relationship with the company, upon having access to material information not yet disclosed, know that it is privileged information; and

• Presumption of relevance: Since the beginning of studies or analyses, information regarding the following matters are relevant: operations of any form of corporate reorganization or business combination, change in the company’s control, decision to promote the cancellation of the publicly- held company’s registration or change in the change of the environment or segment for trading of its shares, as well as a request for judicial or extrajudicial recovery and bankruptcy filed by the company itself.

 

Autonomous prohibition on trading securities prior to the disclosure of quarterly and annual information

The ICVM 358 already regulated the prohibition of trading securities by controlling shareholders, managers, and fiscal council members in the period of 15 days prior to the date of disclosure of the company’s quarterly accounting information and annual financial statements, and this prohibition was maintained by CVM Resolution 44, in an objective form.

However, CVM Resolution 44 has formalized the method of calculation of the 15 day period related to the prohibition, which must be made excluding the day of disclosure, observing, however, that, on the day of disclosure, trades can only be carried out after such disclosure has been effectively made. In addition, CVM Resolution 44 expressly provides that the referred prohibition is absolute, that is, it is not necessary to demonstrate the intention of obtaining undue advantage from the trading.

 

Regime of individual investment plans

Regarding the rules related to investment plans, which are instruments that enable their signatories to trade securities during prohibited periods, CVM Resolution 44 has reduced from 6 to 3 months the minimum period related to the effects of the plans and their eventual modifications and cancellations.

Furthermore, CVM Resolution 44 has expanded the list of individuals who may enter into such plans, making it possible for anyone who has a relationship with a publicly-held company that makes them potentially subject to the trading prohibitions to enter into such plans.

 

Information disclosure policy by publicly-held companies

The policy for disclosing material acts or facts is no longer mandatory for all publicly-held companies, and is now required only for companies that, cumulatively: (i) are registered in category “A”; (ii) have been authorized by a market managing entity to trade shares on the stock exchange; and, (iii) have outstanding shares, with the exception of the shares held by the controller, people related to the controller, company’s managers and those held in treasury.

 

The full text of CVM Resolution 44 can be accessed in Portuguese through the following link:

http://conteudo.cvm.gov.br/legislacao/instrucoes/inst044.html

 

_Understanding Shareholders’ Agreements: Voting Rights

 

Expressly foreseen in the Brazilian Corporation Law, the shareholders’ agreement is an important instrument of corporate governance for companies, and through which shareholders may establish rules regarding their relationship within the company, such as the exercise of voting rights, election of managers and transfer of shares. It is worth highlighting that shareholders’ agreements may be executed by all shareholders or by part of them. This enables the existence of more than one shareholders’ agreement within the same company.

We are now initiating a series of articles in which the main aspects related to shareholders’ agreements will be addressed.

In this first article, we present some considerations regarding the political rights that can be contemplated within a shareholders’ agreement, with emphasis on the right to vote and its implications, in particular qualified quorums, golden shares, block voting, prior meetings, and voting limits.

 

Voting rights and qualified quorums

The Brazilian Corporation Law establishes as a general rule that each common share is entitled to one vote in the deliberation of the shareholders’ meeting. It is possible, however, to restrict the voting rights of the preferred shares or to create classes of common shares with the attribution of plural voting, not exceeding ten votes per share. It is through the vote, and always observing the interests of the company, that the shareholders express themselves regarding the matters on the agenda at a shareholders’ meeting, so that, depending on the corporate structure, a single vote can be decisive for the approval or rejection of a certain matter.

As a standard rule, decisions at a shareholders’ meeting are taken by an absolute majority of votes (that is, a majority of the votes of those present at the meeting), excluding blank votes.

Regardless of the quorums provided by law, it is possible – and fairly common – for bylaws and shareholders’ agreements to establish higher approval quorums for a wide variety of matters in order to accommodate the different concerns and/or needs of the shareholders on a case-by-case basis.

As shown in the following items, the shareholders’ agreement may also provide specific rules for the exercise of voting rights, and it is always important to ensure the compatibility of the rules created for the agreement to be effective.

 

Golden Shares

Another voting mechanism are the golden shares or, as a term used in the context of privatizations of Brazilian companies, “special class shares”. The purpose of golden shares is to allow their holder to have distinctive influence on the deliberations of the general meeting, even if its owner does not hold the majority of the company’s capital stock.

For instance, in the case of the privatization of Embraer, the Brazilian Union became the holder of a single special class common share, which grants it, among other dispositions, veto rights in a series of matters, including the change of Embraer’s name and corporate purpose.

The golden share may also be used in contexts other than privatizations. In family businesses, for example, it may be held by the family leader and granted certain special rights that preserve his/her interests within the family context.

 

Block Voting

Block voting, in turn, is a mechanism capable of standardizing the vote of shareholders integrating the same group. Under this mechanism, it is possible to establish approval quorums within the block itself, so that the decision taken by such quorum is binding on all members of the block.

However, the matters foreseen in the shareholders’ agreement for the purposes of block voting are not unlimited. As stated in Special Appeal 1.152.849-MG, judged by the Superior Court of Justice, there is a distinction between the vote of will, which refers to the manifestation of the shareholders’ will, and the vote of truth, which consists in the shareholder’s assessment regarding the correspondence of the document in question and the reality of the corresponding object. Therefore, a shareholders’ agreement that has as its object the vote of truth, which declares the legitimacy of the managers’ acts, is considered invalid.

Such mechanism is important, for instance, in companies that have as shareholders members of different family units. Therefore, it is possible, via shareholders’ agreement, to establish that each family unit will vote as a block, which, in addition to ensuring a greater representation of each unit in corporate decisions, ends up being a way to bind future generations.

As an example, the Natura & CO Holding S.A. shareholders’ agreement currently establishes five shareholder blocks, and there is a specific chapter in the document to address them, providing, among other matters, the definition of a representative and an alternate for each block, and the specification that each block may enter into shareholder and/or voting agreements with each other for the purpose of organizing the block’s activities within the scope of the Natura & CO Holding S.A. shareholders’ agreement.

 

Prior Meetings

The purpose of prior meetings is to enable a group of shareholders (whether the controlling group or not) to establish, in advance, their votes regarding the matters of a given meeting. The shareholders’ agreement, therefore, may regulate prior meetings, including the rules for calling, installing, and approval quorums.

This mechanism is often used together with block voting. Using the same example as in the previous item, the Natura & CO Holding S.A. shareholders’ agreement regulates prior meetings, which must be called and held prior to each shareholders’ meeting. In this case, only the representatives of the shareholders’ blocks attend, and the resolutions passed at the prior meeting (according to the quorum and rules established in the agreement) bind the vote of all shareholders that are parties to the agreement.

 

Voting Limit

Voting limits can be established in the bylaws and shareholders’ agreements as a corporate governance tool to limit the interference of a certain shareholder or group of shareholders in the company’s decisions. This limitation can be used, for example, to create equality among shareholder groups – which in a family business can be useful in creating a balance in voting rights among family units with very different corporate interest between them, without interfering in other rights inherent to each unit’s corporate interest, such as profit sharing.

Out of curiosity, it is worth mentioning that currently B3’s bylaws establish a shareholder voting limit, so that no shareholder or group of shareholders may, as a general rule, cast votes higher than 7% of the capital stock.

Considering the above, the relevance of the management of political rights in shareholders’ agreements is evident, since its treatment may directly influence the outcome of the resolutions at shareholders’ meetings. In upcoming publications, we will mention other aspects related to political rights in shareholders’ agreements, such as the election of directors and officers, the binding of votes regarding management and the resolution of deadlocks.

 

The text above was published in legislation and market session of Capital Aberto on October 6, 2021, and can be accessed in Portuguese through the link below:

https://legislacaoemercados.capitalaberto.com.br/entendendo-o-acordo-de-acionistas-direitos-de-voto/

Entendendo o acordo de acionistas e a vinculação de votos

Dando continuidade à série de artigos sobre o instrumento do acordo de acionistas previsto no artigo 118 da Lei 6.404, de 15 de dezembro de 1976 (Lei das S.As.), abordaremos os direitos políticos dos acionistas especificamente no que diz respeito à eleição de administradores e eventual vinculação de seus votos.

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