It is a common query in our department of commercial law< /strong>. A client who has a shareholding majority in the company wants to “get rid of” the minority shareholder in the management bodies.
To do this, he proposes the possibility of holding a meeting “in secret” where the agreements that are directed to that destination.
The justification is that he does not want “antics” in that meeting, that the latent tension explodes and could further worsen the personal relationships of the business partners. the company.
What the client wants, even if he doesn’t call it that, is to hold a “clandestine meeting”.
Our legal reflection must answer your question: can it be done? And, if it is done, what consequences does it have for the company and for the affected minority shareholder?
Do you want the lawyer who wrote this article to tell you instead of reading it? Find the video below.
As is known, in order for a shareholders’ meeting to be held, it must be duly convened by the corporate bodies.
As our client does not want the minority partner to attend this “ clandestine ” meeting, he must call him by varying the system traditionally used for it. < /p>
Thus, if in all the previous meetings the call has been made by means of a personal, reliable notification (burofax) or not (email), in this he proposes to convene the meeting by means of an announcement in the BORME or by publishing it in one of the most widely distributed newspapers in the province, hoping not to be read by the Affected partner and who does not attend the meeting despite complying with the legal congratulations in its call.
At this time, as a legal advisor to whom this issue is being raised, I must intervene warning my client about the breach of good faith that must govern the exercise of rights, included in art. 7 of the Civil Code and the recent interpretation made in this regard by the Supreme Court in its judgment of September 20, 2017 (whose reading we recommend).
By virtue of it, the agreements adopted by a “clandestine board” suffer from an evident abuse of rights by the convening administrative body of the and are, therefore, challengable before the ordinary courts.
Changing the traditional method of calling, in this case, would be contrary to good faith.
The client must be brave and face the reality of their company’s situation. There is an open war between two blocks. His is the majority and, as such, he must know how to exercise the real administration of the company aware of his power but, in the same way, knowing that his management is going to be looked at with a magnifying glass by the minority block. < /p>
Only this impeccable exercise of business management will make the minority realize their null capacity to influence said management and their dependence “ad eternum” on the decisions made in the company that you must accept despite being able to cast your vote against.
Any limitation of its corporate exercises (as is the case of calling a clandestine meeting), such as lack of transparency in the accounts and all those Decisions of depth and importance for the company are, after all, ammunition that is given to the minority that will allow them to “shoot” against the company and its managers before the courts of justice.
Therefore, our recommendation is diametrically opposed to concealing the meeting where the joint administrator of the minority block is going to be replaced.
This decision is not illegal and does not go against the aforementioned article 7 of the Civil Code. However, depriving that minority partner of being able to go to that meeting and vote against his removal is.
As we indicated in our title, the management of the company (Caesar’s wife) must not only be in accordance with the law, but also must appear so.
08/02/2018
Congruencia de las sentences límites del iura novit curia No es cuestión baladí the one that occupies us in this case. For that reason, it
The importance of words What matters is that, as a Lawyer, we skill and write with clarity. For everyone’s sake, but especially for our sake,
The Emotional Intelligence of the Lawyer If you don’t know yourself, it’s impossible to do good things. Making a mistake is human, it is part
CASAJUANA
IN THE NEWS
