Indemnity paid to shareholder by Qualicorp is act of liberality that should be punished

On October 1, Qualicorp announced the signing of a non-business agreement with José Seripieri Filho, the company’s CEO and owner of almost 15% of its capital. To not dispose of his shares and not compete with Qualicorp for the next 6 years, the executive received an “indemnity” of BRL 150,000,000.00. In Amec’s opinion, it is a fraudulent transaction that should be exemplary punished.
In the letter sent to the Brazilian Securities and Exchange Commission (CVM) on November 23, Amec points out that acts of liberality are “those that diminish, in any way, the equity without bringing any economic benefit or advantage to society.” According to the jurist Modesto Carvalhosa, such acts, in turn, constitute “fraud to the law and may occur by action or omission of officers, directly or indirectly. What objectively characterizes this illegality is the reduction of equity or the practice of legal business that, in any case, prevents the immediate or mediate growth of it.” In the case of Qualicorp, the board of directors paid compensation to the executive for fulfilling the fiduciary duties that all of them (board members and officers appointed pursuant to the company’s bylaws) should already meet, as provided for in articles 153 and 155 of the Corporate Law.
By virtue of the liberality of the indemnification, Amec reiterates the need of “applying exemplary penalties to Qualicorp’s board for the damages caused to the company, its shareholders and the Brazilian capital market,” in addition to communicating the fact to the Public Prosecutor’s Office.
The President Letter 17/2018 is available here.