Examples of Founder Majority in a sentence
Accordingly, Mr Arbuthnott claims, none of the respondent shareholders could give the Founder Majority approval required by the express terms of Article 39.
Mr Chivers submitted, as he had at the trial, that in any event the amended Article 39 had no application on the facts because a “Relevant Sale” for the purposes of Article 39 was one approved by a Founder Majority, excluding “any Founder who is the Buyer or is acting in concert with the Buyer”.
It is perfectly natural that, in such circumstances, they would be willing to rely on the honest judgment of the Founder Majority as to what were fair and reasonable terms for a sale in the context of clause 7.2. In the light of the factual background to the Shareholders’ Agreement, I consider that clause 7.2 contained an implied term that the Founder Majority would not agree to pursue an Exit except on terms which they honestly considered to be fair and reasonable.
In other words, Mr Arbuthnott, as one of the Founders, agreed that he would be bound by the price with which the Founder Majority was content.
Mr Chivers further submitted that, in any event, the power of the Founder Majority under clause 7.2 to bind the non-purchasing shareholders was a power to be exercised in the best interests of those shareholders.
If at any time there shall not be a Sellers’ Representative and a Founder Majority fails to designate in writing a successor Sellers’ Representative within five Business Days after receipt of a written request delivered by Brooklyn to Seller requesting that a successor Sellers’ Representative be designated, then Brooklyn may petition a court of competent jurisdiction to appoint a new Sellers’ Representative hereunder.
Aside from the issue of the remuneration model, I do not propose to address each of Mr Chivers’ submissions on the valuation issue because the general answer to all of them is that each of the Founders agreed in clause 7.2 of the Shareholders’ Agreement that, if the Founder Majority agreed to pursue an Exit, he would be bound to sell his shares “provided that the terms on which he is required to sell his shares are no less favourable to him than those being offered to any other shareholder”.
On 14 December 2011 a Founder Majority Consent form was circulated to approve the sale of shares pursuant to an offer as a Relevant Sale as required under Article 39, which was signed by the requisite majority on 16 December 2011.
Should the Sellers’ Representative die, become legally incapacitated or bankrupt or, in the case of a successor Sellers’ Representative that is not a natural person, dissolve or liquidate, or otherwise similarly be unable to serve or to appoint a successor to serve in his stead, the Founder Majority shall designate in writing to Brooklyn within five Business Days a single Person to replace the Sellers’ Representative as the successor Sellers’ Representative hereunder.
I accept Mr Chivers’ submission that the power of the Founder Majority under clause 7.2 to compel the sale of shares by non-purchasing shareholders carried with it an obligation beyond an unconditional self-interest.