Shareholder Disputes Series (Part 8 of 10): No freedom to transfer shares

Is this happening to you?

Majority, I want to go out but I’m stuck. I can’t transfer my shares!

Introduction

Proprietary companies are often controlled by a single shareholder or a group. The majority’s nominated directors will control the board and therefore the activities of the company. If the majority (whether as shareholders or with their nominated directors) run the company in their own interests, the detriment to the minority can be serious. The minority shareholders have limited options because they cannot vote the directors out, in a general meeting, without the majority’s support. Getting out is difficult because they cannot force the majority to buy them out. As it’s not a listed company, they are also likely to find it hard to find a buyer of their minority stake. They are locked in with no control of their investment. It’s a difficult position to be in.[1]

The following are the most common complaints made by minority shareholders[2]:

1. The majority are paying themselves excessive remuneration;
2. Little or no participation in profits;
3. The majority are diverting corporate opportunity / are operating a competing business;
4. Exclusion from management;
5. No involvement in important decisions;
6. Limited access to information about the company’s affairs;
7. Inability to prevent dilution of their equity stake;
8. No freedom to transfer shares;
9. No market for their shares;
10. Bad management by the majority.

The following is a consideration of the eighth of these complaints, with recommendations on how a shareholders agreement will assist to prevent it.

Shareholders Agreement: What is it?

Shareholders agreements are a fundamental tool to help a company’s shareholders establish expectations and manage their risk. They are particularly useful to establish rights for minority shareholders and arguably, its primary purpose is “to eliminate the tyranny of the majority”[3].

Starting Point: The Company’s Constitution

To properly appreciate how to address a risk in shareholders agreement, you first need to understand what the legal position would be without a shareholders agreement. To do so, the first point of call is the company’s constitution. This is because the company’s constitution contains provisions relating to the day-to-day internal management and proceedings of the company, the rules.

Legally, a company’s constitution has effect as a contract:

• between the company and each shareholder; and
• between the company and each director and company secretary; and
• between a shareholder and each other shareholder;

under which each person agrees to observe and perform the constitution and rules so far as they apply to that person[4].

Every company’s constitution will be different, depending on who originally helped the company founders establish the company. Typically, however, the constitution provides that the directors of a proprietary company may refuse to register a transfer of shares in the company for any reason [5] and that a person transferring shares remains the holder of the shares until the transfer is registered and the name of the person to whom they are being transferred is entered in the register of members in respect of the shares [6].

Because of this, the minority shareholder might find themselves effectively locked in. Whilst such discretion to refuse to register a transfer is subject to the directors exercising this power in good faith and in the best interests of the company [7], a refusal may be made in this honest belief. For example, an honest belief may be held that it’s best to preserve family control or to prevent a competitor from gaining a foothold in the company.[8]

Protection

The following are some options for the minority shareholder to limit restriction on the transfer of their share:

• No restriction: remove or limit any restriction on transfer;
• Pre-emption right: where the outgoing shareholder can transfer but must firstly offer their shares to remaining shareholders at, say, market value;
• Specific permitted transfers: specify permitted transfers, for example to related parties or where the remaining shareholders must be satisfied that a transferee has at least the same experience and financial standing as the outgoing shareholder, and of course be of good character (this is a vague provision, but it is not dissimilar to the standard provision in Australian leases regarding lessor approval to lease assignments).

Shareholder Disputes Rights and Remedies

This post is not a consideration of the legal duties and remedies that may prohibit the conduct or the remedies available when such conduct occurs. If you have, or anticipate, a dispute between shareholders in your company as a result of any of these complaints, please call me on (07) 3103 3199 to discuss how I can help.

References

[1] Lipton, Phillip; Herzberg, Abe; Welsh, Michelle, Understanding Company Law (Law Book Co, 17th ed, 2014), 629

[2] Cadman, John, Shareholders’ Agreements (Sweet & Maxwell Limited, 4^th ed, 2004), 190

[3] Duffy, Michael J. (2008) “Shareholders Agreements and Shareholders’ Remedies Contract Versus Statute?” Bond Law Review: Vol. 20: Iss. 2, Article 1 at 5 citing A Elson, ‘Shareholders Agreements: A Shield for Minority Shareholders of Close Corporations’ (1967) 22 Business Lawyer 449

[4] Section 140 Corporations Act 2001

[5] S 1072G Corporations Act 2001

[6] S 1072F Corporations Act 2001

[7] Lipton, Phillip; Herzberg, Abe; Welsh, Michelle, Understanding Company Law (Law Book Co, 17th ed, 2014), 262

[8] Cadman, John, Shareholders’ Agreements (Sweet & Maxwell Limited, 4th ed, 2004), 198