A alienação do controle acionário sob a lógica da proteção ao acionista minoritário: uma afirmação da dissociação entre propriedade e controle

Abstract

In the scope of joint-stock companies, both ownership and management control represent themes of long and historical discussions, especially when confronted in the context of the development and spraying of companies. One of the most extensive and complete works on the subject is the book entitled The Modern Corporation and Private Property, authored by the American authors Adolf A. Berle and Gardiner C. Means, published in 1932 and which until today has significant support in the behavior of corporations against the demands of the contemporary market and in the very norms that govern their actions, since their bases sustain the fundamental understanding about the fragmentation between shareholding and power of command in the perspective of business administration. In this sense, in order to add to the aforementioned abbreviated conception, the present research sought to analyze and respond, through essentially doctrinal and scientific studies, and in particular through a bibliography translated from the aforementioned work, to what extent the alienation of the share control, from the perspective of protection to the minority shareholder and with emphasis on the imposition of a takeover bid, provided for in article 254-A of Law 6.404/1976, corroborates the thesis of dissociation between ownership and control. The study covered the context of stock dispersion described by Berle and Means in contract with the local capital market scenario, the evolution and need to protect the interests of the small investor, as well as the nuances related to the control of a company, such as its types, nature and repercussions before its alienation. The results obtained demonstrated that the imposition of a Public Tender Offer as a way of guaranteeing the interests of minority shareholders represents a limitation to the absolute exercise of ownership by the controlling shareholder, further affirming their dissociation from the control, since the OPA conditions the effectiveness of the disposition of the shareholding ownership corresponding to business – or offer of business – between third parties, that is, between the acquirer of the control and the other shareholders holding shares with voting rights. Thus, it was found that even the controller maintaining ownership and control in his domain, he will be prevented from freely negotiating the terms of the alienation of the shares that give him the ascendancy situation.