Resigned Director and 40 percent Shareholders Right to Claim.
Our business partner 40% shareholder & Director has told us she resigns & left her post after we had a dispute about her drawing money from our business account for the benefit of a third party competitor who she is in cahoots with silently.
Attorney answers (1)
You do not mention the jurisdiction you are in, but I infer from the "za" at the end of your email that it is South Africa. I believe your legal system is measurably similar to the U.S., so I can speak generally to the issue.
A director of a corporation owes a fiduciary duty to the corporation. Regardless of whether she executed a non-compete or not, during her tenure as director she should not have done anything that would take away business opportunities for your business. If I understand correctly, she also took money from the company to fund the competitor. That might be construed as theft or at least as conversion. In terms of invoices, it sounds like a lot of self dealing. If she in essence created business with this new company and then charged your company back for it, you may have a cogent argument that you need not pay, or at most you would only have to pay for the value you received. As to buying her out, if you have no shareholders' agreement requiring a buy out, and if South African law does not mandate it, you probably are not required to buy her out. She is a shareholder and must be treated like other shareholders, but nothing more. If she has converted IP from the company to her own use or that of the new company, again you may have a basis for criminal charges as well as civil claims. In short, I think you have substantial counterclaims against this woman, and possibly viable criminal charges. You clearly need legal counsel, because it is going to take litigation, I suspect, to set things straight. Best regards, Ken ksprang@dcinternationalcounsel.com 1 person marked this answer as good
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