Yes, there is a shareholder agreement.
I am afraid I really do not know. I believe I wouldn't be able to get our shareholder agreement from A but there are others who may have it. I may have copy on an old computer but it may not be the latest one.
I am rather naive and have never used this system. I will be going out in about 15 minutes.
C will agree but he is a minor shareholder. Other minor shareholders will agree. B will always vote on D's advice.
yes, I have found the agreement dated feb 2014.
no, as I think I explained there is a 30-30-30 deadlock.
There seems to be a clause that requires a 75% vote to change anything to do with the constitution of the company. I am sure 51% could vote the guy off but I cannot manage that.
I feel that, by the nature of your questions, you need to read my initial description more thoroughly. Please ask me about anything unclear.
Yes I read there was a 30-30-30
How much is your Directors loan account?
Do you mean the venture capitalist whom I have called B who put in the initial sum? If so, that was €900,000 approximately.
There is another loan in the business of around £50,000. That person has no shares and is unsecured.
I am off to bed now and can resume this tomorrow. If you need any excerpts from the S'holder agreement I can cut and paste or send the whole thing.
I will need to see what it says about disputes or termination of business
THIS AGREEMENT is dated 3 February 2014
(1) The parties whose names and addresses are listed in columns 1 and 2 of Schedule 1 (the 'Shareholders').
(2) Biomimetics Health Industries Holdings UK Limited a private company incorporated and registered in England and Wales with company number 08085906 whose registered office is at Accurist House***** London, W1U 7AL (the 'Company'')
(A) The Company has an issued share capital of £10,256, divided into 10,256 ordinary shares of £1 each, all of which are issued and fully paid.
(B) Each Shareholder is the registered owner of the ordinary shares of £1 each in the capital of the Company as listed in column 3 of Schedule 1:
(C) The Shareholders have agreed to enter into this agreement for the purpose of controlling their capacity as shareholders of the Company.
Acting in Concert has the meaning given to it in the City Code
on Takeovers and Mergers published by the Panel
on takeovers and Mergers (as amended from time
the board of directors of the Company as constituted from time to time.
a day (other than a Saturday, Sunday or public holiday in the United Kingdom) when banks in the City of London are generally open for business.
has the meaning given in clause 4.4 and Continuing Shareholder means any of them.
means an interest in shares giving the holder or holders control of the Company within the meaning of section 1124 of the corporation Tax Act 2010.
Biomimetics Health Industries Group
in relation to the Company, the Company and any subsidiary or holding company as defined in Section 1159 of the Companies Act 2006.
has the meaning given in clause 2.3.
in relation to the Company, means a financial accounting period of 12 months.
the spouse or siblings of a Shareholder or any of his/her children (whether natural or adopted) or where the Shareholder is a Company, any member of its Group.
has the meaning given in clause 4.4.
the Proposed Sale Price or, following service of a Price Notice, the price per Sale Share determined in accordance with clause 4.5.
each of the parties from time to time to this agreement (including any person who becomes a party by executing a deed of adherence pursuant to clause 4.9.2), together with their respective successors and assigns and Shareholders means all of them together.
the auditors for the time being of the Company or, if they decline the instruction, an independent firm of accountants appointed by the Seller and by the Continuing Shareholders or, in the absence of agreement between them on the identity of the expert within five Business Days of the expiry of the ten Business Day period following service of a Price Notice, an independent firm of accountants appointed by the President, for the time being, of the Institute of Chartered Accountants of England and Wales (in each case acting as an expert and not as an arbitrator).
2.5 Julian Schild shall be entitled to attend all meetings of the Board as observer.
The Company shall not, without the prior written consent of 75% of all Shareholders:
4.18 If, as a consequence of one or a series of related transactions, one or more Sellers propose to transfer any of the Shares (Proposed Transfer) which would, if carried out, result in any person (Buyer), and any person Acting in Concert with the Buyer, acquiring a Controlling Interest in the Company. Before making a Proposed Transfer, a Seller shall procure that the Buyer makes an offer (Offer) to the other Shareholders to purchase all of the Shares held by them for a consideration in cash per Share that is at least equal to the highest price per Share offered or paid by the Buyer, or any person Acting in Concert with the Buyer, in the Proposed Transfer or in any related previous transaction in the six months preceding the date of the Proposed Transfer (Specified Price).
4.19 The Offer shall be made by written notice (Offer Notice), at least fourteen Business Days before the proposed sale date (Sale Date). To the extent not described in any accompanying documents, the Offer Notice shall set out:
(a) the identity of the Buyer;
(b) the Specified Price and other terms and conditions of payment;
(c) the Sale Date; and
(d) the number of Shares proposed to be purchased by the Buyer (Offer Shares).
4.21 If the Offer is accepted by any Shareholder (Accepting Shareholder) in writing within seven Business Days of receipt of the Offer Notice, the completion of the Proposed Transfer shall be conditional on completion of the purchase of all the Offer Shares held by Accepting Shareholders.
The Fair Value for any Sale Share shall be the price per share determined in writing by the Valuers on the following bases and assumptions:
The Shareholders are not in partnership with each other, nor are they agents of each other.
Each Shareholder undertakes that he shall not at any time after the date of this agreement (or, if later, the date he became a party to it) use, divulge or communicate to any person (except to his professional representatives or advisers or as may be required by law or any legal or regulatory authority) any confidential information concerning the terms of this agreement, the business or affairs of the other Shareholders or the Company which may have (or may in future) come to his knowledge, and each of the Shareholders shall use his reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
Each Shareholder shall pay the costs relating to the negotiation, preparation, execution and implementation by him of this agreement in the same proportion which his shares in the Company bears to the total number of shares in the Company held by all Shareholders.
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of that agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each party has executed at least one counterpart.
This agreement has been entered into on the date stated at the beginning of it.
Is the VC trying to get the money back?
Well, not actively but he doesn't want to lose his investment. He feels that if he votes with me, the company will fail. He sees the wild promises by A of imminent investment as being a quicker way of realising that goal. He lives in Malta mostly and is somewhat naive - although English. He is aware of all the criminal and anti company behaviour of A but chooses to ignore it all.
A is the most disliked person I have ever met. The licensees have all been deceived by him and led into contract by convincing but false promises (as indeed I have been) but I am the one stirring it up and I am determined the man will meet justice even if it does mean the company collapses.
The reason we know that there is no imminent large incoming investment is that A has been promising this for 3 years! During this time there has been absolutely no DD whatever done by anyone on the company nor any of its licensees nor our licensed sub contract manufacturers. If you were investing a few million into a company I am sure you'd want to reassure yourself of the bona fides of that company.
What are my options? I think in an ideal world, I'd like somehow to have the company wound up and do a deal with the administrator. E and I are prepared to virtually write off our debts and E (who is the owner of a large multi national) is prepared to step in and run my company while putting in an entire change of experienced and honest management.
i'll continue tomorrow. Thank you.
I am owed £240,000 in accrued salary/consultancy as, to save the company in May 2011, I suggested doing this. A carried on paying himself £10,000 cpm and his wife £4,000. I cannot prove this except that before that my salary came in at £7,000- bank statements prove it. The board meeting minutes have been altered so as not to show my offer. C is my witness.
A will dispute this and will probably lie that I had been dismissed…or some such rubbish. The company which is owed £250,000 is in the process of suing but A has pleaded more time as all debts will "shortly be settled".
C wants to sue for his back salary and expenses totalling around £70,000 but dare not because he has had a nervous breakdown due to everything that has gone on and his doctor has advised him to go nowhere near work for the time being.
E has offered to underwrite C's £70,000 if we bring the company down. However A will challenge the £250,000 of E as he says that E can still have the product he paid for "but it is delayed". This promise has been made by A for over a year.
What did you determine from the shareholder agreement?
I am going to the dentist and will be back this afternoon.
The only way is to close the business. You can't do this by resolution because of the 75% requirement. So you can only do it by issuing proceedings.
You need to write and set out your losses and request a payment within 14 days or say you will go to Court within 14 days. You should make sure you send this signed delivery and keep a copy.
If they do not payyou then you can issue proceedings in the County Court. You can either do this online at: www.moneyclaim.gov.uk or by completing form N1 http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n001-eng.pdf and take it to your local County Court.
The Court will then issue a claim which a copy will be sent to the Defendant who will have a limited time to defend it, if not you can enter Judgment and enforce.
Once you have a CCJ then you can wind the company up.
But until you have a CCJ upon my reading the contract, there is very little you can do
Can I clarify anything for you about this today please?
One last point, did I do the correct thing by reporting to the Intelligence service of the insolvency gov people and reporting the bribery offence to the police?
Just give me your opinion and I will leave you an excellent feedback. By the way, the money claim site only works for amounts of up to £100,000.
Yes you are correct. It should be considered bribery and if an offence has been committed it should be investigated.
£100,000 is a lot of money
Does that help?
Well Alex, as I said before I am actually owed £240,000 but for the administrator I would move the decimal point left - if he will let us put in new management, we can then save the company. But it has to go to administration first. So, given the £100,000 limit it looks as if I will have to go the county court route doesn't it? I put in my claim in December to the company perhaps I'll do it again and give them 14 days more. Is that what you'd advise? Or should I go the on line route and just stick to £100,000?
Closure of the company is more important than the money.
That's my final question.
Sadly looks like you need to go to Court, otherwise you can't close the Company.
I think you may have misread. the small claim limit is £10,000 (ten thousand) not £100,000
But you can still issue claim for £240,000 -but it wont be a small claim if defended.
Does this help?
Could I issue 30 small claims for £7,000 for each month of salary accrued?
Is my claim suitable for Money Claim Online (MCOL)?
Types of claim you can make online
If you are issuing your claim using MCOL it must be:
for a fixed amount of money less than £100,000
against no more than two defendants (people or organisations)
served to a defendant or defendant(s) with an address in England or Wales
I cut and pasted that from the on line service.
Sadly you cant issue lots of £7,000 claims
It needs to be a single claim
Yes sorry its £99,999 limit. If you want to issue more than this you need to do it as a paper claim so form N1
But if you issue 30 claims it will be an abuse of process
So you should issue one claim using form N!
Yes, Alex. Thank you. I now understand my options and am reassured that I didn't make a dreadful blunder. Mind you, it is now a matter of conjecture as to whether the relevant authorities will act on anything!
I will plough on with trying to force closure.
Hello Alex, I believe i already gave you an excellent reference and a bonus. I hope you got it.
Kind regards ***** ***** again.