O Acordo de Voto em Bloco introduzido pela Lei 10.303/01

AUTOR(ES)
DATA DE PUBLICAÇÃO

2007

RESUMO

The objective of this work is to demonstrate the introduction into the Brazilian legal system of the shareholders agreement to vote as a pool, through the coming into force of Law 10.303/01, which amended and included provisions in the Corporation Law, Law 6.404/76, and an explanation on its characteristics. The identification of this type of agreement was done, initially, on the basis of foreign experience on the matter, notably of the United States of America (pooling agreement) and Italy (sindacato azionario), countries with a tradition in the use of contractual instruments for the regulation of the voting pool in the deliberative bodies of corporations. Following is a description of the North American jurisprudential precedents (on the basis of the leading case Smith v. San Francisco &N. P. Ry. Co., of 1897, which registers the emergence of the pooling agreements) and those of the Italians. Analysis of doctrinal positioning on the matter and verification of the characteristics and current development of pooling agreements in these two countries. Conveyance of the foreign experience to the national legal system. Regulation in Brazilian law of the pooling agreement for the exercise of control. Identification of the elements that characterize the pooling agreement, notably the institution of the prior meeting and the proxy of the agreement, demonstration of the legal nature, as well as the analysis of the relevant aspects thereof and related problems. Conclusion in the sense that: (i) the shareholders agreement to vote as a pool in order to exercise the corporate control, similarly to the pooling agreement of North American law and of the pooling agreement of Italian law, was incorporated by the Brazilian legal system after the amendment of the Corporation Law by Law 10.303/2001; (ii) the contractual determination and the holding of prior meetings are fundamental for the existence of the pooling agreement; (iii) the positioning of the block, determined in a prior meeting procedure according to the majority decision of the contracting parties is binding on all the signatories of the agreement; (iv) the contractual nature of the pooling agreement guarantees flexibility and freedom in the stipulation of procedures such as the fixing of a minimum instatement or resolution quorum in the prior meetings and in the resolution of conflicts internal to the block; (v) the maintenance of the proxy figure of the agreement with an irrevocable term of office (except by unanimity of the block) is granted with a validity term coinciding with the term of the agreement and guarantees the block voting in a unique sense and, therefore, without the dissidences that could jeopardize the pools decision-making power, and (vi) the positioning of the pool covers the resolutions of the companys administrative bodies, without the occurrence of violation of the principle of administrator independence

ASSUNTO(S)

voto em bloco direito comercial vote as a pool brasil [lei n. 10.303, de 31 de outubro de 2001] sociedades por acoes -- leis e legislacao -- brasil

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