Shareholders enjoy some legal protection without agreement under state laws, but a shareholders` pact is an additional possibility for a company to protect shareholders and raise expectations about what will happen in the event of a dispute. There are specific provisions that can protect or manage shareholder conflicts. A court may, on a temporary basis, order a third party, such as an accountant, to take over the management of assets. In some situations, the company itself may be threatened. The dissolution of the company and the sale of all business rights are a drastic procedure to remedy shareholder disputes. In general, this can be avoided through successful negotiations. and if the material dispute cannot be resolved within a reasonable time or by the mediation and arbitration provisions contained in this agreement, any shareholder (the initiating shareholder) may initiate a compulsory purchase or sale agreement (the „shot gun commission“). In several shareholder disputes that we dealt with, the other party attempted to argue that a shareholder contract executed years earlier by shareholders had fallen out of disreacia and was generally not respected, so that it had become „unenforceable“ because it had been „abandoned“. In both cases, the existence of a strong language of non-competition in the underlying shareholders` pact was the origin. Is that a good tactic? That depends.
Many cases are resolved through mediation, which is an out-of-court meeting in which the parties discuss their requests with a mediator in a legal action and attempt to reach a settlement agreement. Parties to the proceedings are often asked to submit their summary of the dispute and their requests for a transaction in writing prior to mediation. If a shareholder dispute cannot be resolved through negotiation or mediation, the matter may be brought before a judge or jury. Right to first refusal: If a shareholder wishes to sell his shares and part of the company, he must first propose to sell his shares at fair value to other shareholders. If the shareholders cannot buy them, the selling shareholder can offer them to a third party. Often, the parties provide for a preprocessing right that requires a shareholder who wishes to transfer his shares to offer them first to the company and/or other shareholders before they are sold to a third party. A reference fee is a mechanism that increases the likelihood of enforceable force for transfers, since absolute restrictions on the transfer of shares are unfavourable and may be deemed unenforceable by the courts. Typically, a company`s senior managers run the company in the normal course under the supervision of the board of directors.
Whether by the statutes or by the Board`s authorizations, senior managers are entitled to take certain measures on behalf of the company, including the company`s commitment, subject to any restrictions to be found in the constitution, the statutes, the decisions of the board of directors, the shareholders` pact or any other document or instrument.