Unanimous Shareholder Agreements

– to whom could it be handed over? The group, the remaining shareholders? The acquisition or proposed acquisition of control by a “non-Canadian” within the meaning of The Investment Canada Act (“ICA”) must be considered when such a person is involved as a party to the shareholders` pact. While in most cases the issue will revolve around the acquisition of voting shares, it is possible that the provisions of the shareholders` pact will influence the company`s treatment under the ICA. The quorum for executive or shareholder meetings should not be based simply on the absolute number of directors or shareholders present at a meeting. It may include the requirement that a particular shareholder must be present in order for decisions to be made. In this case, you should consider continuing a meeting after a number of interruptions of a session with less than the usual quorum requirements if a particular director or shareholder does not participate. This will prevent a party from blocking the company`s operations by simply not participating in executive or shareholder meetings. (c) non-advances or guarantees: where a corporate financing involves a significant shareholder participation, it may be necessary to consider corrective measures such as the involuntary sale of shareholders who refrain from providing a reasonable advance or an appropriate guarantee. Alternatives such as interest charges for defaulting shareholders, the acceleration of surplus repayments and interest on excess loans should also be considered. Involuntary sales can take the form of the sale of all units, dilution or super dilution. In addition to the fact that among all shareholders of a corporation or by declaration, if a single shareholder is required, the distinguishing feature of a U.S. company is that it must “limit, in whole or in part, the powers of directors to manage or oversee the management and affairs of the company.” Thus, to the extent that the United States limits the powers of directors, it can be said that their discretion is limited, at least to some extent.

The CBCA and MCA also provide that, to the extent that the powers of U.S. directors are limited, shareholders assume all rights, powers and obligations of directors in this regard and that directors are removed from their obligations and obligations. Note that an interesting distinction is made between the CBCA and MCA provisions regarding the confirmation of shareholders` ability to strengthen their discretion in administrative decisions, since CBCA Rule 146(6) explicitly allows shareholders to strengthen their discretion in the exercise of directors` powers, while there is no equivalent provision in the MCA. However, given the fact that the WAB recognizes pooling agreements (see below), the best view is that shareholders are indeed able to exercise their discretion and, therefore, it is very likely that this is a distinction without distinction.

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