Direito de recesso e respectivo valor de reembolso em companhias
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2015-08-27
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Mattos Filho, Ary Oswaldo
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The Right to Dissent and Appraisal and reimbursement amounts should be interpreted together. They are two sides of the same coin. The measurement of the reimbursement amount, as foreseen by Law 6404/1976, article 45 and its paragraphs is not necessarily made according to the value of the company’s net assets. These only establish a minimum amount, in case the company by-laws or articles of association provide such minimum amount. In case it does not, there is a void as to the criterion to establish the reimbursement amount. The best interpretation is the systematic and purposeful one of the law, in the sense that the value of the shares to be reimbursed should be the closest possible to their actual amount. Currently, in the majority of the cases, the economic value is the one that best represents the actual value of a company and therefore, in case of a void in the by-laws or articles of association, this criterion should prevail to calculate the reimbursement amount. The concept and function of the right to dissent and appraisal in companies, its characteristics, mainly the exhaustive character of its hypotheses and the possibility of reverting the decision motivating the dissent and appraisal, its legislative background, mainly the political and economic influences in the definition of its hypothesis, serve as basis for this rationale. As supporting elements, the paper also analyzes the court precedents and jurisprudence and addresses the understanding of the 'Comissão de Valores Mobiliários' (Brazilian SEC). As a further means to justify and base the rationale developed in the present paper, the efficiency and fair value concepts and their possible and pacific coexistence are addressed on the item dealing with a view of the Law and Economics on this issue. Finally, through the analysis of all the articles of incorporation and by-laws of the companies listed at the 'BMF/BOVESPA' on the first half of January 2015, an analysis is provided as how in practice stock companies have dealt with this issue.