Director’s Duties

Question Recently gautam limited liability convened an annual general meeting in which five directors were elected. The board of directors had several meetings and they decided, interalia, to purchase 150 acres of land by using the company money. The directors thereinafter sold the land at high price and kept 10% of profit for themselves. Dom, one of the directors entered into agreement with several companies without informing the Board of Directors. Later Dom incorporated a new company with similar object clause and started to compete with Gautam Berhad. In an annual general meeting the minority shareholders raised the abuse of directors and excess profit made. The majority shareholders objected 1) Discuss the fiduciary responsibility of directors 2) Based on the facts to what extend the directors are unable (cases or section) 3) Discuss the right of minority shareholders 4) Based on the facts advise minority shareholder (use your own words) Answers 3) The right of minority shareholders are I. Rights Under The Memorandum And Articles Of Association. The Memorandum and Articles of Association (“M&A”) of a corporation are the statutory papers of a corporation. The M&A are significant papers as they set out and normalize among other belongings the stuffs of the corporation and the method in which the corporation to be coped. The M&A take result in rule as a agreement between not only the stockholders and the corporation, but between each individual stockholder and every other. Generally, a pretentious individual stockholder may carry an act in court to inhibit any suggested gap of the M&A. In suitable cases, the court may also set aside deeds done in gap of the M&A. However, where a third party is intricate, the courts may be less equipped to set aside the deal unless the third bash recognizes or perhaps should to have recognized of the gap. To further ensconce privileges under the M&A, the law delivers that the M&A can only be edited by a special purpose, that is to say a purpose conceded by a mainstream of not less than three-fourths of the stockholders elective either in person or by proxy at the overall conference of the corporation. The M&A is therefore an significant starting fact for a stockholder who may feel pained. A stockholder is eligible at rule to a replica of the M&A, and on demand, the corporation is compulsory to send a replica of the M&A to the stockholder. The stockholder is, however compulsory to create imbursement of $5.00 or such lesser amount as is immovable by the directors. II. The Right To Information As the saying goes, knowledge is supremacy. This is no dissimilar in the case of the minority stockholder, who frequently by cause of not being intricate in the day to day administration of the corporation, will not own thorough info on the relationships of the corporation. The law strikes an equilibrium from necessitating too much exposé (which may be excessively onerous and affect the capability to uphold a gradation of certainty that may be desirable to the administration of a business), and the neediness of stockholders not in administration to be informed. The following are some of the causes of info on a corporation. The records referred to in sub-paragraphs i), ii), iii) and iv) below may be examined by a stockholder without safekeeping, and replicas may be obtained by imbursement of a minimal safekeeping. The register of stockholders. This register which is normally reserved at the listed office of the corporation would deliver info as to the titles and addresses of the stockholders and their stockholdings. The register of managements, office assistant, directors and accountants. This register which is kept at the listed office of the corporation would comprise definite arranged info on the own details of these peoples and of their arrangements. Unconnectedly there is a register of manager’s stockholdings reserved at the listed workplace that would among other things show a manager’s stockholding in the corporation or in a related company, and whether any manager has privileges or possibilities to get or dispose of stocks in the corporation or a related company. The register of considerable stockholders. This register which is reserved at the listed workplace of the corporation would deliver info on peoples interested in not less than 5% of the elective stocks in the corporation and the magnitude of their curiosity. i) The register of debenture owners and the register of accusations. These registers are commonly reserved at the listed office. A debenture is normally a paper which makes or admits an obligation. The register of debenture owners would offer details of debenture owners to whom the corporation has published debentures (other than debentures movable by distribution) and the sum of debentures apprehended by them. The register of accusations would deliver info associating to most shape of safety granted by a corporation to protect debts of the corporation. The miniature paperback of overall conferences. The miniature paperback is reserved at the listed office or chief site of industry of the corporation. A stockholder may examine without accusation the miniature paperwork which are compulsory to be reserved or minutes of all overall conferences of the corporation. The accounted profit and loss financial records of the corporation, the accountants’ report and the managers’ report. These reports are compulsory to be conveyed to stockholders not less than 14 days before the overall conferences of the corporation at which the financial records are to be presented. These papers deliver beneficial info associating to the monetary relationships of the corporation. i)The Registry of Companies. The Registry upholds a record of papers wedged with the register office. Replicas of papers comprising much of the info characterized above may be purchased from the Register office. III. The Right To Attend, Vote And Call General Meetings Of The Company A stockholder has a correct to be present any overall conference of the corporation. A stockholder is also eligible to tell at the conference. Overall conferences of corporations are significant events for minority stockholders, especially of big corporations, as it is an event to encounter and enquire queries of the administration. Further, stockholders of a corporation (other than those holding non-voting option stocks) are eligible to ballot on any resolve. With one exemption, such privileges may not be debarred by the M&A of the corporation. The exemption is that the law countenances a corporation to deliver in its Articles for postponement of such privileges where appeals or other amounts billed by a stockholder in admiration of his or her stocks have not been remunerated. Apart from the Yearly Overall Conference, Remarkable Overall Conference (“EGM”) of a corporation may be termed. Two or more stockholders holding not less than 10% of the topics allotment wealth of the corporation, or such lesser quantity as is delivered in the Articles, may call for an EGM. Further, a resolve may be put onward for elective at a overall conference if a requisition is made in script by (i) stockholders holding not less than 5% of the elective privileges, or (ii) not less than 100 stockholders holding stocks in the corporation on which there has been remunerated up an mediocre amount, per stockholder, of not less than $500.00. The prerequisite of a 10% shareholding, 5% elective privileges or 100 stockholders may not continuously be effortless to encounter in a case of minority stockholders in a corporation having many stockholders, such as definite big corporations. Thus, there may be a need to tug together capitals, and governments such as the SIAS would no uncertainty be in a location in suitable cases to aid enable such labors. D. The Overall Correct To Be Cured Justly – The Constitutional Medicine Under Section 216 Of The Companies Act Section 216 of the Companies Act exemplifies the overall correct of a stockholder, in precise a minority stockholder, to be cured justly. Cases in court allocating with the piece display that while the courts identify the privileges of the mainstream, where there has been a noticeable leaving from the values of just play likely on the part of the mainstream of those in administration, the courts may intrude to deliver a medication. Under the piece, a stockholder may apply to court for help where: the relationships of the corporation are being piloted or the supremacies of the managements are being exercised in a mode tyrannical to one or more stockholders or in disrespect of his or their welfares as stockholders; or some action of the corporation has been finished or is endangered or that some resolve of the stockholders, or any tutorial of them has been voted for or is else biased to one or more of the stockholders (including the stockholder creating the request). Under the first ground, the relationships of the corporation would be piloted in a tyrannical mode where there is a noticeable leaving from the values of just allocating and a defilement of the situations of just drama that a stockholder is eligible to professional. A case of ignoring the curiosity of a stockholder will be formed out where those in rheostat of the corporation in spite of being conscious of the welfares of the minority create an intentional conclusion to overrule or broom it to the side. Under the second ground, a case may be formed out where there are prejudiced actions which cannot be vindicated with allusion to the curiosity of the corporation and which operate unethically. On the other hand, a case may be delivered on the ground of biased preconception, and in this esteem there are a great quantity on examples where a case of biased preconception may be formed out. Case law signifies that the magistrates are more eager to create a discovery of biased preconception where the demeanor protested of is not in accordance with the articles or some other prerequisite of law. Exceptionally, demeanor that is lawful may, in definite restricted situations, be unfairly prejudicial. This is, however, the exemption rather than the law. The exemption ascends in conditions where the articles do not mirror the sympathetic upon which the stockholders were related. In this esteem, if there are legitimate expectations on the part of the shareholder which have been breached, the court may intrude and deliver a medication. In overall, however, stockholders (chiefly of big corporations having many stockholders) have no extra legal anticipation out there that discussed on them by the constitution of the corporation. If the case is made out under section 216, the court has extensive supremacies to medication or put an end to the substances protested of. For example, the court may instant or forbid any action or revoke or differ any deal or resolve. The court may also create instructions to normalize the demeanor of the corporation in the upcoming. In suitable cases, the court may empower civic minutes to be delivered in the title of the corporation against people against whom the corporation has entitlements. The wide-ranging extensiveness of the supremacies of the court go so fast as to countenance the court to gale up or clear up the corporation if such is essential to medication or end the substances protested of. The penalties of zigzagging up a corporation are further dealt with in Part E of this article. IV. The Remedy Of Winding Up The Company The courts may, among other grounds, wind up a corporation on a request by a stockholder where: The managers have acted in the relationships of the corporation in their own welfares rather than in the welfares of the stockholders as a whole, or in any other mode whatever which seems to be biased or unfair to other stockholders. It is just and unbiased to do so. The courts have formed unblemished that it is mistaken to frontier the conditions in which a case for zigzagging up on the fair and reasonable ground may be formed out. The courts, however, frequently do necessitate some adequately staid crime, indecorous demeanor or gap of some sympathetic or legal anticipation on the part of a stockholder. Cases have also revealed that the medication is not only obtainable in cases where some gap or contravention of some lawful privileges is intricate, such as a gap of the M&A, but also gaps of some legal anticipation on the part of a stockholder that may not be instituted on the lawful correct. For example, in small and nearly dash corporations, the courts have on event granted the medication where a stockholder’s legal anticipation to partake in administration was trespassed. It should, however, be cited that the greater the corporation and its quantity of stockholders the more problematic it would be in the conditions of the case to found a legal anticipation. This is because with a big stockholder base, it is more likely that stockholders would normalize their events by mention to more official and lawful preparations such as the M&A rather than unofficial and understood preparations and anticipations. Zigzagging up is a radical medication in that it puts into operation a procedure which would lead to the end of the corporation. Except for a petite retro after a zigzagging up instruction is formed, the corporation would no longer be able to do industry and stages would be taken to gale down the corporation. Examinations into the relationships of the corporations including the actions of managements and constables of the corporation may be tackled in the procedure of zigzagging up. Thus, in suitable cases, the medication of zigzagging up is an influential medication, though frequently of latter report, obtainable to stockholders. V. The Right To Sue On Behalf Of A Company There may be events where an incorrect is done to a corporation, but the mainstream or those in rheostat of the corporation agree to take no act in admiration of the crime. Since the incorrect is to the corporation, the entitlement has to be brought by the corporation and a minority stockholder will normally have to bear by the decision of the mainstream or those in rheostat. This is a normal aspect of mainstream law. However, where the action protested of is out there the stuffs of the corporation as set out in the memo of the corporation, any stockholder may prosecute to have the deal reticent. This is because the mainstream has no correct to necessitate the corporation to do something out there its things. Further, exceptionally the courts in the welfares of fairness would, put on overall rule, allow such a entitlement to be carried by the minority, specially where there has been an misuse of supremacy. A mutual example where the minority has been permitted to carry or uphold the act is where the mainstream of those in rheostat have muffled legal privileges being carried against themselves. This correct at overall rule is complemented by section 216A of the Companies Act which sets out a process to countenance a stockholder to put on to court in suitable cases to countenance an act by the corporation to ensue. The process under section 216A is, however, not obtainable in admiration of corporations registered on the Singapore Interchange. However, there is nil to prevent a privilege being carried under overall rule in the case of registered corporations. 4) Based on the facts I would like to advise minority shareholder on: Our customer in a publishing corporation for over 10 years having been one of the founders of the industry. Our customer was also a manager and worker of the corporation and had slowly condensed her employed hours in training for superannuation. When the stockholders of the corporation were impended by a big cosmopolitan watching to obtain the industry, our customer enquired us to counsel her as a minority stockholder on the auction of her stockholding and in precise the levy insinuations. We had originally counseled our customer in joining with a stockholders’ contract (useful checklist for stockholder contracts here) and new articles of connotation when a third bash saver combined the corporation as a stockholder several years ago. Our counsel at that phase was that our customer should make sure that her stockholding was not diluted to less than 5%, that her stocks convey elective privileges and that she continue a manager and/or worker of the corporation to make sure that she does not endanger her capability to acquire businesspersons’ release on a auction. We also counseled on the corporation reform which intricate adjustments to the portion wealth to cater for dissimilar lessons of stocks. Our customer was conscious that the articles of connotation included slog alongside privileges that could potency her to vend her stocks at the equal value as the other stockholders however she was also ardent to make sure that her privileges were sheltered as entirely as likely in the auction documentation (including the portion acquisition contract). In adding, our customer desired to make sure that the deal was systematized in the most levy well-organized method likely from her viewpoint. She grips at least 5% of the normal portion wealth of the aim corporation designating her to 5% of the elective privileges. She is a constable or worker of the aim corporation (or one of the corporations in the collection) The location concerning the earn out deliberation be eligible for businesspersons’ release was more intricate, especially given the one year holding prerequisite. We thus bargained with the purchaser than the deliberation should be organized in such a mode as to empower our customer to advantage from businesspersons’ release in admiration of the earn out deliberation as well as the early deliberation. The portion acquisition contract enclosed a quantity of guarantees and insurances however as our customer was only a minority stockholder in the corporation we bargained with the purchaser that she would not be obligatory to provide the guarantees and insurances on a combined and numerous foundation with the other venders and her accountability would be partial to the all-out sum of deliberation she was getting under the portion acquisition contract. We revised the guarantees and exposé note with our customer to make sure that she was contented with the guarantees that were being given and the exposés that had been formed. We also counseled our customer on limiting agreements which the purchaser compulsory in the portion acquisition contract. As our customer was owing to be retiring and had no intention of setting up a contending industry she was contented with the limitations suggested by the purchaser. Our customer was pleased when the deal finished and has since referred us to home participants and contacts for counsel on corporation rule and recruitment rule topics. References:

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