Banca de DEFESA: Matheus Vinicius Aguiar Rodrigues

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : Matheus Vinicius Aguiar Rodrigues
DATE: 23/02/2023
TIME: 20:00
LOCAL: https://bityli.com/U8n5m
TITLE:

"Agreement indemnification in publicly traded joint stock corporation: process of elaboration, approval and perform the contract".

KEY WORDS:

Corporate Indemnification. D&O Insurance. Corporate Governance. Moral Hazard. Directors and Officers Liability.

PAGES: 371
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUMMARY:

The main purpose of this study was to describe how the Brazilian public companies regulate the legal and patrimonial risks of the agreement corporate indemnification in line with the concerns and recommendations of CVM Guidance Opinion n. 38/2018. The study has as a sample 53 (fifty-three) drafts of indemnity contracts published by these companies in the CVM system. The research concluded that the standards most used by companies in relation to the indemnity agreement were: (i) shareholder approval for granting the benefit; (ii) the lack of global limits on this corporate indemnification; (iii) a coverage period that ensures all acts during the mandate, regardless of when the law process is initiated against the beneficiary; (iv) an objective conception in relation to the possible beneficiaries (directors, officers and employees performing management functions); (v) specific contractual hypotheses to exclude the obligation to indemnify; (vi) broad coverage and similar to that provided in the D&O insurance; (vii) complementarity between indemnity agreements and D&O, adopting D&O as a principal instrument; (viii) general meeting approval in relation to some specific hypotheses of conflict of interest and patrimonial risk for the company; and (ix) administrative council approval in relation to the ordinary decisions of classifying the directors and officers' acts as indemnifiable losses. The study still had two secondary objectives: the first was to define the indemnity agreements; and the second was to identify formal arrangements capable of monitoring the “opportunism and monitoring hypothesis” in relation to indemnity agreements. The study defined the contract as an atypical, commutative, onerous, personal and continuous bilateral arrangement. In addition, the study also argued that this contract must be regulated by clause 152 of the Brazilian Corporate Law as directors and officers’ remuneration advantage and that, in relation to state-owned companies, is necessary a special provision in Brazilian Federal Law n. 13.303/2016. Finally, the study assumed that, given the complementarity between the D&O and the indemnity agreement in Brazilian companies; and given the lack of financial limits in corporate indemnification, the negative perspective of the D&O in relation to the “opportunism and moral hazard hypothesis” would be intensified by the indemnity agreement. On the other hand, regarding the “monitoring hypothesis” (governance), the absence of an interested third party (insurer) in the company's corporate governance and the absence of specific regulation of indemnity contracts weaken the positive perspective of this hypothesis and increase financial and legal risk for the company.

BANKING MEMBERS:
Externo à Instituição - CARLOS PAGANO BOTANA PORTUGAL GOUVÊA - USP
Externo à Instituição - OTAVIO YAZBEK - Insper
Presidente - 1828282 - AMANDA ATHAYDE LINHARES MARTINS RIVERA
Externo à Instituição - HENRIQUE HARUKI ARAKE CAVALCANTE - IDP