The process of valuation of shares in a limited liability company is a topic of relevance to business legal practice. The valuation of shares refers to the calculation of the amount owed to a member who withdraws or is expelled from the company. This quantification aims to determine the financial amount corresponding to the member’s participation in the share capital, reflecting the real value of their share at the time of exit.
Valuation of shares in a limited liability company occurs under various scenarios, mainly related to changes in the corporate structure. The most common are: Exit of a Member: When a member decides to voluntarily withdraw from the company, whether for personal, professional, or any other reason. In this case, it is necessary to determine the value of their participation in the share capital so that they receive the appropriate financial compensation.
Expulsion of a Member: In situations where a member is expelled from the company, whether for failing to meet their obligations, conflicts that harm the company, or other reasons specified in the partnership agreement or legislation. Here, too, it is necessary to calculate the value of their share to make the payment.
Death of a Member: In the event of a member’s death, their heirs are entitled to the portion of the capital that belonged to them. Valuation of shares is used to determine the amount that should be transferred to the heirs or legal successors.
Partial Dissolution of the Company: In situations where the company does not dissolve completely but undergoes restructuring due to the departure of one or more members. Valuation of shares is necessary to redefine the distribution of the share capital among the remaining members.
Resolution of Corporate Disputes: In cases of disputes or litigation among members, valuation of shares can be a means of resolving the conflict, establishing the fair value to be paid to a member who wishes to withdraw or who is being expelled.
Transformation, Merger, or Splitting of the Company: In these cases, the structure of the company is significantly altered. Valuation of shares may be necessary to establish the values corresponding to the members’ shares in the new corporate structure.
In all these situations, the valuation of shares aims to ensure that the members, whether withdrawing, expelled, or heirs, receive fair and proportional compensation for their participation in the company. It is a process that requires care and attention, especially regarding the calculation method and the market values of the company and its shares.
Calculation Methods
The methods for calculating the value of shares can vary. Typically, the assets and liabilities of the company, its future cash flow, and other elements influencing its market value are considered. The choice of method should be based on equity and the economic reality of the company.
The jurisprudence of the Brazilian Superior Court of Justice (STJ) follows specific principles to ensure that the calculated value is fair and equitable. However, it is important to note that the STJ does not establish a single and fixed method for all cases, as the specific circumstances of each corporate situation may require different approaches. Below, we highlight the main ones:
Real Value of Shares: The STJ advocates that the valuation of shares should reflect the real value of the withdrawing or expelled member’s shares. This means considering not only the book value but also the market value of the corporate share, taking into account elements such as assets, liabilities, and profitability prospects of the company.
Valuation Methods: Various methods can be used to calculate the real value of shares, including discounted cash flow, valuation by multiples (comparison with similar companies), or adjusted book value. The STJ is generally flexible regarding the method used, as long as it adequately reflects the real value of the member’s share.
Date of Valuation: The date for the valuation of shares is another important point. The STJ usually determines that the relevant date for the calculation is the effective date of the member’s disassociation from the company or the date of the company’s resolution in relation to the withdrawing or expelled member. This is crucial, as the value of the company can vary over time.
Profits and Dividends: In some cases, the STJ understands that profits and dividends accumulated up to the date of valuation should also be considered in the calculation of shares, especially if there was already a provision for their distribution.
Contractual Aspects: The jurisprudence of the STJ also considers the clauses of the partnership agreement of the company. If the contract establishes a specific method for the valuation of shares, this is generally respected unless it is shown to be manifestly unfair.
Expert Report: In many cases, the judiciary accepts or even requires the performance of a technical expertise to determine the value of shares, ensuring an impartial and technical evaluation.
Timing of Valuation: Determining the timing of the valuation is essential, as the value of the share can vary significantly over time. Typically, the date of the company’s resolution in relation to the withdrawing or expelled member is considered.
Procedural Aspects
In case of disagreement over the value of shares, the process may be judicial or arbitral, depending on what is stipulated in the partnership agreement. If there is no arbitration clause in the partnership agreement, the dissenting member has the right to appeal to the Judiciary to determine the amount due.
Given this scenario, it is clear that the valuation of shares is more than just a mere accounting operation; it is a legal procedure that requires transparency and adaptation to the individual circumstances of each company and its members. Therefore, the involvement of qualified professionals, both in the legal and accounting spheres, becomes essential to ensure corporate harmony and the protection of the rights of all involved.