Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/3.3.5.1:3.3.5.1 Introduction

Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/3.3.5.1

3.3.5.1 Introduction

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

As appears from the literai wording of S. 994 (1) CA 2006, when applying the unfür prejudice remedy, both current conduct in the company's affürs and past conduct in the company's affürs are of relevance. The unfür prejudice remedy also covers acts or proposed acts of the company. Even omissions of the company are covered. One single proposed or actual act or one omission may lead to application of the unfür prejudice remedy. The unfür prejudice remedy can be applied in a broad range of situations. S. 994 (1) CA 2006 makes clear that its scope covers both conduct in the affürs of the company and acts of omissions of the company. Because of the emphasis on acts and conduct in relationship to the company, the court has to investigate the nature of the conduct, acts or omissions included in the complaint.

Obviously, the remedy may regard the exercise of powers of the directors in their capacity as such and of the board of directors in its capacity as such. These powers follow from statute and from the constitution of the company.

The remedy may also range over resolutions adopted by the shareholders. This proposition is further defined in Re Unisoft Group Ltd.1 In this case, Harman J judged that a distinction should be made between acts and conduct of the company and acts and conduct of the shareholder in his personal capacity. In his opinion, the voting right of a shareholder and other rights attached to shares are private rights. His opinion implies that the exercise of a shareholder's right cannot constitute a ground for the application of the unfür prejudice remedy. Nonetheless, the exercise of the voting right may cause the company to act in a manner unfürly prejudicial to one or more members, by passing an unfürly prejudicial resolution. In the view of Harman J, the act of the company will be regarded, but the act of the shareholder will not be regarded as conduct in the company's affürs. Harman J considered it to be standing law, that even if a shareholder acts in malice in the way he votes on his shares, there can be no objection to that.

Deze functie is alleen te gebruiken als je bent ingelogd.