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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3609
Experience:  Solicitors 2 years plus PQE
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I'm a majority share holder in my company (75%) however my

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I'm a majority share holder in my company (75%) however my seed investor has appointed himself as the only class (a) director on the board of directors who from what i gather is in charge of running the firm? He has said that I can't also be named a class (a) director for tax reasons as our business is based offshore, i'm a uk resident as is he so i don't understand how it can be one rule for him and another for me as it stands he's given himself the power to kick out any MD of the firm. I'm currently MD and have been running the firm for the past 3 years can he still do this if i'm the majority share holder?
Submitted: 2 years ago.
Category: Law
Expert:  Alex J. replied 2 years ago.
Alex J. :

Hi, Thank you for your question and welcome.

Alex J. :

My name is ***** ***** I will assist you.

Alex J. :

Do you have a shareholders agreement? Where has he got the phrase "class (a) director"?

Alex J. :

Do you mean "Class (a) shareholder"?

Alex J. :

Do you have different classes of share?

Customer: Yes we have a shareholders agreement i have 900 ordinary share and he has 300 ordinary shares on the contract it say he's a class A director and the othe 2 directors on the board of directors have been described as class B i've been omitted as a director
Alex J. :

Hi, Thank you. Do the articles of association allow the company to have two classes of share? Does the shareholders agreement mention different classes of director?

Alex J. :

What do the articles say about who can be appointed as a director?

Customer:

This is what the shareholder agreement says:

Customer:

The affairs of the Company shall be managed by a Board of Directors composed of not less than one and not more than five directors.

(b). The directors shall be designated as “A” directors and “B” directors, solely for the purposes of legal representation of the company. In all other matters, there shall be no distinction between the directors.

(c). The first designated “A” director of the Company is: The first designated “B” directors of the Company are:

Issue of Share Capital and Variation of Rights

1. Without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, any share in the company may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise as the company may from time to time by ordinary resolution determine.

2. In terms of the authorisation in the Memorandum of Association clause 5(d), subject to the provisions of Section 115 of the Act and to Articles 75 to 81 of these Articles of Association, the Company may issue preference shares and / or redeemable preference shares on such terms as the Company may by shareholders' ordinary resolution determine and provide for.

3. A. Upon any issue of shares, whether part of the original authorised capital or any increase thereof:

(a). these shares shall be offered on a pre-emptive basis to the existing holders of the Ordinary Shares in the Company in proportion as nearly as may be to the number of Ordinary Shares held by each such holder of Ordinary Shares;

(b). where there is more than one class of ordinary shares, shares issued to a particular class shall first be offered to the holders of the Ordinary shares in that particular class, and any shares not taken up by any holder of the shares in that class shall be offered pro-rata to the other shareholders of that class;

(c). if any shares remain not taken up by holders of shares in a class as provided in (b) above, they are to be offered to holders of Ordinary Shares in the other classes in proportion, as nearly as may be, to the number of shares they hold.

(d). if after exhausting the procedure in (a), (b) and (c) above there shall remain any ordinary shares that have not been taken up, such shares may be freely issued to non-shareholders.

B. The offer/s referred-to in (A) must be submitted by the Company to the shareholders by registered mail and any acceptance thereof by the shareholders must be received by the Company within fourteen days from receipt of the Company offer, failing which the offer/s shall be deemed not to have been accepted by the shareholder concerned, and such shares shall be available freely to other members or to non-members.

C. If at any time the share capital is divided into different classes of shares, the change of any shares from one class into another or the variation of the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class which is to be changed or the rights attached to which are to be varied, according to the case) may, whether or not the Company is being wound-up, be made with the consent in writing of the holders of three-fourths of the issued shares of that class, and the holders of three-fourths of the issued shares of any other class affected thereby.

Such change or variation may also be made with the sanction of an extraordinary resolution passed at a separate general meeting of the holders of the issued shares of that class and of an extraordinary resolution passed at a separate general meeting of the holders of the issued shares of any other class affected thereby. To every such separate general meeting the provisions of these Articles relating to general meetings shall apply.

4. The Company may exercise the power of paying commissions or of making discounts or allowances provided it complies with the requirements of section 113 of the Act. Such commission may be satisfied by the payment of cash or the allotment of fully or partly paid shares or partly in one way and partly in the other.

5. A. The Shares are issued in the holder's name and numbered consecutively.

B. Every person whose name is ***** ***** a member in the register of members shall be entitled to receive one certificate for each holding of each type of shares. If a certificate is defaced, lost or destroyed, it may be renewed on such terms as to evidence and indemnity and the reimbursement of expenses incurred by the Company in investigating evidence as the directors think fit.

Powers and Duties of Directors

55. The directors shall exercise their powers subject to any of these Articles, to the provisions of the Act, the Civil Code, and to such Articles, being not inconsistent with the aforesaid regulations or provisions, as may be prescribed by the Company in General Meeting; but no regulation made by the Company in General Meeting shall invalidate any prior act of the directors which would have been valid if that regulation had not been made.

56. The directors shall have power to appoint any person to be the attorney of the company for such purposes and with such powers, authorities and discretion (not exceeding those vested in or exercisable by the directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the directors may think fit, and may also authorise any such attorney to delegate all or any of the powers, authorities and discretions vested in him.

57. The directors shall cause minutes to be made in books provided for the purpose:

(a). of all appointments of officers made by the directors;

(b). of the names of the directors present at each meeting of the directors and of any committee of the directors;

(c). of all resolutions and proceedings at all meetings of the Company, and of the directors, and of committees of directors.

58. The directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.

59. A. Without prejudice to sub-article B of this Article, every member of the Board of Directors shall continue to act indefinitely.

B. Without prejudice to the provisions of the Act, in the case of any director that is appointed by a class of shareholders, such director may be removed and / or replaced at any time by his class appointees at their sole discretion by a simple letter addressed to the Company Secretary.

C. On the death, resignation or removal of a Director, a new Director shall be appointed in his stead by the members of the class, if any, who appointed the retiring Director, and such Director shall serve as a Director in terms of sub-article A of this Article. A letter addressed to the Company Secretary by the members of the relevant class shall suffice for the giving into effect of the provisions of this clause.

Managing Director

69. The directors may from time to time appoint a Managing Director or Director or Directors holding any other executive office or offices from amongst themselves delegating to him or them any of the powers for the time being vested in the said Board of Directors.

70. Each such appointment shall be for such period and on such terms as the Directors think fit, and, subject to the terms of any agreement entered into in any particular case, the Directors may revoke such appointment.

71. A Managing Director/s or Director holding any other executive office shall receive such remuneration as the Directors, subject to the approval of the Company in General Meeting, may from time to time determine.

72. The Directors may delegate to any Managing Director or any Director any of the powers exercisable by them upon such terms and conditions and with such restrictions as they may think fit, and may from time to time revoke, withdraw or vary any of such powers.

Alex J. :

Hi,

Thank you. I am switch this to Q and A mode. It will take me a little while to review this so please do not be concerned if you do not here from me right away.

Customer: replied 2 years ago.

Okay thanks

Expert:  Alex J. replied 2 years ago.
Thanks
Kind regards
AJ
Customer: replied 2 years ago.

I keep on getting prompts I have received an answer as yet?

Expert:  Alex J. replied 2 years ago.
Hi,
Thank you.
Being a director is entirely a legal matter under the Companies Act. (a) and (b) directors is just some prescribed in these articles to identify the directors concerned. You cannot limit a directors voting power.
If you own 75% of the company and 75% of the voting, there is no reason why you cannot just call a general meeting and appoint yourself as a director (or block your removal if you are currently).
Technically you could be removed as a director at a board meeting, but you ultimately control the company as a 75% share holder.
Can you confirm that your shares have voting rights?
Kind regards
AJ
Alex J., Solicitor
Category: Law
Satisfied Customers: 3609
Experience: Solicitors 2 years plus PQE
Alex J. and other Law Specialists are ready to help you
Customer: replied 2 years ago.

This is what it says: Subject to any rights or restrictions for the time being attached to any class or classes of shares, on a show of hands at any General Meeting of the Company every ordinary shareholder present in person shall have one vote, and on a poll every member shall have one vote for each ordinary share of which he is the holder. On a poll, votes may be given either personally or by proxy.

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