05. shareholders Flashcards
what are the rights available to shareholders?
- Membership rights – enforcement under s 33 CA 2006
- Shareholders’ agreements
- Shareholders’ rights under CA 2006
what are the remedies available to shareholders?
- The removal of directors under s 168 CA 2006
- Derivative actions under s 260 CA 2006
- Unfair prejudice actions under s 994 CA 2006
- Just and equitable winding up under s 122 Insolvency Act 1986 (IA 1986)
where can a membership rights be found?
in the Articles (as described in s33 CA 2006)
what can a member do if their membership rights under the Articles are infringed?
sue for damages under s33 CA 2006
what are some examples of shareholders’ membership rights?
- Right to a dividend once it has been lawfully declared;
- Right to share in surplus capital on a winding up;
- Right to vote at meetings; and
- Right to receive notice of GMs and AGMs.
In order to protect themselves, members should ensure that any of their rights which are not membership rights are
set out where?
not in the Articles, in a separate contract (such as a shareholders’ agreement)
what is a shareholders’ agreement?
a contract between some or all of the shareholders
why might a shareholders’ agreement be desirable?
- extension of the Articles
- can include provisions which are not legally permitted in the Articles (as they are subject to CA 2006)
- can be kept private (unless they are explicitly referred to in the Articles)
- minorities have a right of veto due to unanimity for changes to shareholders’ agreements (whereas amendments to Articles only require 75% approval)
BUT provisions should not restrict a company from exercising its statutory powers
what are some examples of provisions included in a shareholders’ agreement?
- Unanimous voting over certain matters, eg removing a director;
- Quorum for GMs;
- Dividend policy;
- Allotment of new shares; and
- New and departing shareholders
how can a member enforce a shareholders’ agreement?
against the other shareholders under general contract law principles
e.g., breach of contract, injunction etc.
Summary of shareholders’ rights under CA 2006
Summary of removal of a director by shareholders - BOARD THAT CO-OPERATES WITH S 303 CA 2006
Summary of removal of a director by shareholders - BOARD THAT DOES NOT CO-OPERATE WITH S 303
can a director who is also a shareholder vote in a GM regarding his own removal?
yes
What if the director is also a shareholder? Bushell v Faith clause in the Articles
may give a director, who is also a shareholder, weighted voting rights at a GM at which a s168 CA 2006 resolution is proposed
such weighted voting clauses are allowed because the requirement for an ordinary resolution is not being changed, but rather it is the way votes are amassed which is
altered, making it easier for the imperilled director to survive
what should also be checked for provisions similar to a Bushell v Faith clause in the Articles?
shareholders’ agreement
What if the director is also a shareholder? shareholders’ agreements
A shareholders’ agreement may provide that the unanimous consent of all shareholders is
required in order for a resolution to remove a director to be passed
what are the limitations of having a shareholders’ agreement which provides that the unanimous consent of all shareholders is required to remove a director?
such a provision does not remove the statutory right of the majority
shareholders to remove a director under s 168 CA 2006.
This is because a company is bound to accept the vote of the shareholders even if this is in breach of the provisions of the shareholders’ agreement.
The director could then claim against the other shareholders for breach of the shareholder agreement or, if they know about the s168 proposed removal resolution in advance, they can apply for an injunction to prevent a breach of the terms of the shareholders’ agreement.
Will the director be entitled to any compensation for loss of office?
the company may decide to pay compensation
What is the procedure for obtaining compensation for loss of office?
Any payments must be approved by the shareholders + holding company (but not a wholly-owned subsidiary) by ordinary resolution unless:
(a) The payments do not exceed £200; or
(b) The payment is made in good faith:
(i) in discharge of an existing legal obligation;
(ii) by way of damages in respect of such an obligation;
(iii) in settlement or compromise of a claim in connection with termination of a person’s office or employment; or
(iv) by way of pension in respect of past services (s 220 CA 2006).
A memorandum re the payment must be available to shareholders for 15 days before the ordinary resolution is passed, ending with the date of the general meeting.
Can the director avoid shareholder approval by the payment being made to a third party?
Not if the third party is a connected person, in which shareholder approval will also be required!
what is the rule in Foss v Harbottle?
In situations where a wrong has been done to a company, the company is the proper
claimant.
Limited exceptions allow shareholders to bring a claim on the company’s behalf.
what is a derivative claim (s260)?
A derivative claim is initiated by a member of a company, rather than by the company itself:
(a) In respect of a cause of action arising from an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director/shadow director (+ common law duties not under CA 2006); and
(b) Seeking relief on behalf of the company.
who is given a remedy under a derivative claim?
the company