Duties and liabilities of directors
15. What is the scope of a director's
duties and personal liability to the company, shareholders and third parties?
Please distinguish between civil and criminal liability under each of the
following (if relevant):
· General duties.
· Theft and fraud.
· Securities law.
· Insolvency law.
· Health and safety.
· Environment.
· Anti-trust.
· Other.
France
Law stated as at 01-Apr-2011
CEOs,
members of the management board or directors can be held liable towards the
company and/or the shareholders for any breaches of applicable laws,
regulations or of the bye-laws, and for mismanagement.
Directors
only have individual liability towards third parties if they have personally
committed a fault separate from their corporate duties.
Supervisory
board members have no liability toward the company and/or third parties other
than for personal negligence, tortious acts in the performance of their duties
or mismanagement. They have no liability for managerial acts and their
consequences.
In
addition to general rules of criminal law, CEOs, directors and management board
members can incur specific criminal liability, for instance, for:
· Misuse of corporate assets or power.
· Payment of fictitious dividends.
· Presentation of false corporate accounts.
Supervisory
board members can incur liability for any offences committed by management
board members and not disclosed to the shareholders' meeting.
CEOs,
members of the management and supervisory boards, and directors incur civil and
criminal liability for breaches of the securities law, whether intentional or
resulting from negligence, including:
· Disclosure of false or misleading information.
· Insider trading.
· Failure to declare the crossing of certain
shareholding thresholds.
· Stock price manipulations.
· Violation of black-out periods.
CEOs,
directors and members of the management board can incur liability for corporate
losses in cases of mismanagement and can also be subject to measures preventing
them from holding management positions.
CEOs
and members of the management board can be held liable for any breach of health
and safety regulations, whether intentional or resulting from negligence.
Directors are bound to ensure the strict enforcement of health and safety
regulations and can incur personal criminal liability if they do not take all
appropriate measures, regardless of whether any incident actually occurs.
CEOs,
directors and members of the management board can be held liable for any breach
of environmental regulations, whether intentional or resulting from negligence.
CEOs,
directors and members of the management board can be held liable for any breach
of anti-trust regulations.
Germany
Law stated as at 01-Apr-2011
· General duties. The
general duties of the management board members arise out of their managerial
responsibilities as well as their fiduciary duties towards the company. The
management board of AGs is responsible for the management of the company and is
not bound by the instructions of third parties. The management board can use
wide discretion and is protected by the business judgement rule, but it must
act with due care and diligence for the benefit of the company. In addition,
the management board must convene the shareholders' meeting, inform the
supervisory board about the developments in the company and prepare the annual
report. The management board must comply with all statutory regulations and the
articles of association.
Under the AktG, the management board members are
liable towards the company if they are in breach of one of their duties. This
generally is an internal liability; an external liability to third parties only
exists in exceptional circumstances and usually requires wilful misconduct.
Management board members in breach of their duties must compensate the company
for incurred damages. The supervisory board is in charge of enforcing this
liability.
· Theft and fraud. Since
most of the duties of the management board are fiduciary duties, a breach may
also attract criminal liability. Management board members in breach of trust
are subject to criminal prosecution and can be fined or imprisoned. In
addition, the Criminal Code (StGB) forbids theft and fraud by company
bodies. Members of the management or supervisory board generally can be liable
according to criminal and civil law if they fail to establish an effective
compliance monitoring system that would prevent criminal behaviour. If crimes
were committed by employees with the consent or connivance of the management
board members, both can be punished. The company can be subject to the
disgorgement of profits.
· Securities law. The
Federal Financial Supervisory Authority (Bundesanstalt für
Finanzdienstleistungsaufsicht, BaFin) monitors compliance with the WpHG (WpHG).
Management boards of listed companies can be liable if they do not disclose or
wrongfully disclose insider information. In addition, criminal penalties and
fines can be imposed on the management board members for insider trading or
market manipulation.
· Insolvency law. The
management board must file for insolvency proceedings without undue delay if
the company is unable to repay its short-term debts (that is, debts due in
about the next three weeks) or is over-indebted. In these circumstances, the
management board is prohibited to settle payments except for payments that a
diligent, prudent and conscientious manager would settle. Management board
members in breach of their duty to file for insolvency can be liable towards
the company and creditors for damages and can be subject to criminal liability.
Whether there is liability towards the shareholders is uncertain. An
administrator can challenge payments settled after the insolvency of the
company. Management board members allowing such payments are liable towards the
company and its creditors.
· Health and safety. Generally,
management board members can be liable if health and safety offences are
committed by the company with their consent and connivance. In addition, they
can be liable (also under criminal law) if a health offence is based on the
management board's failure to provide safe and effective organisational
structures (for example, for monitoring of the safety of products).
· Environment. A
company's business may be affected by a large number of environmental
regulations under civil, public and criminal law (for example, emission
control, soil conservation, waste management and water pollution control).
These rules are generally directed at the company. The management must ensure
compliance with these regulations. If these rules are breached, the management
board members can be liable internally towards the company and externally
towards third parties if the actions of the management board are the cause of
damages incurred by third parties. In addition, the StGB provides several rules
relating to the protection of the environment. Violation of these rules may
result in criminal prosecution, fines and imprisonment.
· Anti-trust. Considering
a growing trend of high fines against companies in breach of anti-trust
regulations, the management board must exercise particular care in this field.
Cartel activity such as the abuse of a dominating position or price-fixing can
result in civil and criminal liability for the company as well as the
management board. Management board members primarily face an internal liability
against the company.
· Other. In
addition to the above, there is a wide number of regulations providing for
potential liability of the management board, for example, in relation to
violations of anti-bribery, anti-money laundering, tax and social security
laws.
India
Law stated as at 01-Apr-2011
· General duties. Broadly,
the duties of a director can be divided into those of good faith and of skill
and care. Almost every duty imposed on a director by the Act can be categorised
under either of these two broad heads. As a general rule, a director is
answerable to the company.
A director must:
o act bona fide and in the interests of the company; and
o use his powers for the purposes for which they are
intended to be exercised.
He is expected to exercise utmost good faith towards
the company and to act honestly in the exercise of the powers conferred on him.
· Theft and fraud. The
directors of an Indian company are liable for breach of their fiduciary duties.
Fiduciary duties are not defined by statute. However, Indian courts have
interpreted them to include:
o the subjective duties of honesty and good faith in
relation to all the actions which the directors believe are in the best
interest of the company; and
o the objective duty of not placing themselves in a
position of conflict between their fiduciary obligations to the company and
their personal interests.
One instance in which the directors were held
personally liable for breach of their fiduciary duties was where the directors
condoned the use of company funds in a manner and for a purpose forbidden by
law. Similarly, if directors of the company enter into an unlawful agreement,
they would be liable to the company for a breach of their fiduciary duty.
Under Indian law, the directors are regarded as
trustees of the company' assets. For example, directors receiving secret
profits, accepting bribes or gifts, or utilising confidential information of
the company in an unauthorised manner would be liable to the company for
damages it incurs in connection with their receipt of such personal benefits.
In addition to the above, a director can be held
criminally liable for the fraud or making a misrepresentation about the
company's affairs.
· Securities law. If
a company commits an offence under securities law, every person (including a
director or the managing director) who at the time the offence was committed
was in charge of the conduct of the company' business, as well as the company,
will be deemed guilty of an offence. The punishment under securities law
extends to imprisonment and/or fine.
No person is liable under securities law, if the
person proves that the offence was committed without his knowledge or that he
exercised all due diligence to prevent the commission of the offence.
· Insolvency law. On
a members' voluntary winding-up (that is, a winding-up approved by a member's
extraordinary resolution (at least 75% majority)), the directors or, if the
company has more than two directors, the majority of the directors, must make a
declaration verified by an affidavit stating that they have:
o made a full enquiry into the company's affairs; and
o formed the opinion that the company has no debts or
that it will be able to repay its debts in full within a period not exceeding
three years from the date of the winding-up, as specified in the declaration.
If a director makes a declaration without having
reasonable grounds to believe that the company will be able to pay its debts in
full within the period specified in the declaration, he can be subject to
imprisonment of up to six months and/or a fine of up to INR50,000.
· Health and safety. The
Factories Act 1948 (Factories Act) contains provisions relating to health and
safety requirements of workmen employed in a factory. If the provisions of the
Factories Act are breached, the occupier and manager of the factory will each
be guilty of an offence and subject to imprisonment and/or fine. In relation to
a company, an occupier means a director of the company who has the ultimate
control over the affairs of the factory (Factories Act).
· Environment. If
a company commits an offence under the environment statutes, and such an
offence has been committed with the consent or connivance of, or is
attributable to the neglect on the part of any director, manager, secretary or
other officer of the company, such director, manager, secretary or other
officer will also be deemed to be guilty of the offence.
No person is liable to any punishment provided under
the environment statutes, if the person proves that the offence was committed
without his knowledge or that he exercised all due diligence to prevent the
commission of the offence.
· Anti-trust. If
a company commits offence under the Competition Act 2002 and the offence has
been committed with the consent or connivance of, or is attributable to the
neglect on the part of any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer will also be deemed
to be guilty of the offence.
No person is liable to any punishment provided under
the Competition Act 2002, if the person proves that the offence was committed
without his knowledge or that he exercised all due diligence to prevent the
commission of the offence.
· Other. Directors
may be liable to the company under the tort of negligence. Proving negligence
is a matter of fact. A director's role in relation to the alleged tortious act
must be examined.
The Netherlands
Law stated as at 01-Dec-2012
The management board or the supervisory board can
delegate responsibility for specific issues to individual directors or a
committee of directors, under the articles or board regulations. However, if a
matter falls within the responsibility of two or more directors, each director
remains jointly and severally liable for it (see Question 16). The Amendment Management and Supervision will
introduce the possibility to delegate (under the articles or regulation or by
resolution) the authority to resolve to individual directors on delegated
specific issues, with some limitations.
For
listed companies, the CGC recommends that the supervisory board appoints from
among its members, committees to deal with audit, remuneration, and selection
and appointment.
UK (England and Wales)
Law stated as at 01-Apr-2011
The
general duties of a director of a UK company have been codified in the
Companies Act 2006 and can be summarised as follows:
· To act in accordance with the company's constitution
and only exercise powers for the purpose conferred.
· To act in a way most likely to promote the success of
the company for the benefit of shareholders as a whole.
· To exercise independent judgement.
· To exercise reasonable care, skill and diligence.
· To avoid a situation in which the director has, or
could have, a direct or indirect interest that conflicts or possibly may
conflict with the interests of the company.
· Not to accept benefits from a third party.
· To declare a direct or indirect interest in a proposed
transaction or arrangement with the company.
· To declare a direct or indirect interest in a
transaction or arrangement which has already been entered into by the company.
A
director owes these duties to the company, not to shareholders or to any third
party such as a customer or supplier. If he is in breach, only the company can
claim against him for the loss the company has sustained as a result. If the
company fails to pursue a claim, shareholders can apply to the court for
permission to recover the company's loss on its behalf. Only the final duty to
declare an interest in an existing transaction or arrangement carries criminal
liability for a breach.
A
company cannot itself commit theft. A company may commit fraud under the Fraud
Act 2006 in which case any director who consented to or connived at the act
will also have committed the offence. If the business of a company is carried
on with the intent to defraud creditors, every person who was knowingly party
to the fraud will have committed an offence.
Directors
will commit a criminal offence if they knowingly or recklessly make a
materially misleading, false or deceptive statement, promise or forecast to
induce a person to buy or sell shares. There are further offences of market
manipulation and market abuse.
A
director can be liable to make good sums lost by creditors if he allows a
company to continue trading when he knew or ought to have concluded that it had
no reasonable prospect of avoiding insolvent liquidation. Such a claim may be
brought by a liquidator of the company; it is not a duty owed directly to
creditors.
A
director may be disqualified from acting as a director for a minimum of two
years for fraud in connection with the winding-up of a company and, among other
things, for persistent breaches of companies legislation.
Directors
may also be sued by their company for misfeasance, that is, the misapplication
or retention of the company's assets or a breach of a fiduciary or other duty.
In addition, if a company goes into liquidation or administration, a court may
set aside a gift made by the company or a transaction entered into at a
significant undervalue and require a director to pay the difference.
UK
companies owe many duties to ensure the health, safety and welfare of their
employees, customers and anyone else who may be affected by their activities.
Where a company is shown to have committed a health and safety offence, an
individual director may also be criminally liable if the corporate offence was
committed with their consent or connivance (that is, they were aware of the
circumstances but turned a blind eye), or the offence was attributable to their
neglect.
There
are many environmental offences that can be committed by a company,
particularly in relation to pollution and waste disposal. Where an offence is
committed with a director's consent or connivance, or because of his neglect,
he may also be liable.
Directors
can be personally liable for serious breaches of EU and UK competition law. It
is a criminal offence for an individual dishonestly to agree to enter into
certain anti-competitive agreements, including direct or indirect price fixing,
the limiting of production or supply, and market sharing or bid-rigging
arrangements. The required element of dishonesty will be present if the
director was acting dishonestly by the standards of reasonable people, and he
knew that he was acting dishonestly when measured against those standards. Such
a director also faces disqualification from acting as a director for up to 15
years.
The
UK's Bribery Act 2010 creates criminal offences for a company of bribing
another person, accepting a bribe and bribing a foreign public official.
Directors of a company may also be guilty where the company's offence was
committed with their consent or connivance.
The
Pensions Act 2004 includes provisions that could make a director personally
liable for a pension scheme deficit. Contribution notices can be served on
individuals such as directors who have attempted or been involved in an attempt
to prevent the recovery of a debt due from an employer in relation to a pension
scheme or to prevent such a debt becoming due or to compromise or reduce it,
unless acting in good faith.
United States
Law stated as at 01-Dec-2012
State statutory law and a corporation’s certificate of
incorporation normally expressly provide that the board can delegate many, but
not all, of its powers to an individual director or to a committee of
directors. For example, under Delaware law, a committee cannot generally:
· Amend the corporation’s certificate of incorporation
or bye-laws.
· Adopt certain agreements of merger or consolidation.
· Declare a dividend or authorise the issuance of stock.
Although
no particular committee structure is designated by state law, the US federal
securities laws and NYSE and Nasdaq rules require public companies to have an
audit committee composed entirely of independent directors. The NYSE also
requires its listed companies to have a nominating and corporate governance
committee and a compensation committee. Subject to certain exceptions, all of
these committees must consist only of independent directors. In addition, in
June 2012, the SEC issued final rules in response to the Dodd-Frank Act
directing the national securities exchanges to adopt new listing standards
relating to the independence of compensation committees and their selection of
advisers. In September 2012, the NYSE and NASDAQ proposed changes to their
listing standards in response to the SEC's final rule.
16. Can a director's liability be restricted or
limited? Is it possible for the company to indemnify a director against
liabilities?
France
Law stated as at 01-Apr-2011
Under
certain circumstances, officers can be exempted from criminal liability in
cases of valid power delegation to someone having the necessary qualification,
authority and means to perform the delegated tasks.
Germany
Law stated as at 01-Apr-2011
Internal liability. The liability of a management board member is excluded
if the breach of duty is based on a previous resolution of the shareholders'
meeting (AktG). In addition, the liability of a management board member
may be waived after three years once the claim has arisen by a resolution of
the shareholders' meeting.
External
liability. A management board member can be
indemnified against claims by third parties and fines, provided the acts giving
rise to such claims or fines did not constitute a breach of duty towards the
company (which rarely applies).
India
Law stated as at 01-Apr-2011
In a limited company the memorandum may provide that
the liability of the directors or of any director or manager is unlimited (section
322(1), Act). Otherwise, in a limited company, the director is not liable
to the extent that it can be proved that the offence was committed without the
knowledge of the director and that the director conducted necessary due
diligence to prevent the commission of the offence.
A
company cannot indemnify a director against any negligence, default,
misfeasance, breach of duty or breach of trust of which he may be guilty in
relation to the company (section 201, Act). However, section 633 of the
Act extends special protection against a liability that may have arisen
pursuant to an act of a director done in good faith.
The Netherlands
Law stated as at 01-Dec-2012
The
duties and liabilities of the management board and the supervisory board are,
in general, collective. However, each director has his own duty of care for the
proper performance of his tasks. A director can discharge himself from
liability by showing that any mismanagement or lack of supervision is not attributable
to him. If specific tasks are delegated to one or more directors, other
directors can only discharge themselves from collective liability if each
director individually can show that the mismanagement is not attributable to
him and that he did not fail to take action to avoid or to prevent the
consequences of mismanagement (this will apply only after the introduction of
the Amendment Management and Supervision) (Introduction of the Amendment
Management and Supervision).
When
adopting the annual accounts, a general meeting usually discharges the managing
directors from their responsibilities for the preceding accounting year.
However, this discharge requires a specific resolution and is not granted
automatically by adoption of the annual accounts. This discharge only extends
to activities and facts made known to the shareholders by the annual accounts
or before they are adopted. A decision by a general meeting to grant this
discharge is void if it is made in breach of the law, the articles or principles
of good faith. The discharge is only valid in terms of the company's internal
affairs.
A
legal entity can commit a crime under Dutch law. When a legal entity is found
guilty of a crime, the managing directors and the individuals directly responsible
for the company's criminal behaviour can face criminal penalties. In addition,
many provisions of Dutch (economic) criminal law are specifically aimed at the
management board or its directors.
A
company can also commit an offence under tort law. The managing directors can
be liable for damages incurred by third parties, depending on the circumstances
of the case.
A
person who has insider knowledge cannot enter into transactions in or from The
Netherlands in securities that are listed or are likely to be listed on an
authorised securities exchange in or outside The Netherlands. Breach of this
provision is an economic offence and the Dutch Authority for the Financial
Markets (AFM) can complain to the Public Prosecutor, or impose an administrative
fine or a cease and desist order.
In
certain circumstances, directors can be liable under tort law to investors if
they produce a misleading prospectus in relation to an issue of securities.
If
the company is insolvent and the company's insolvency is found to have been
caused by apparent negligence in the performance of the duties of the
management board over the three years before the date of the insolvency, the
managing directors are personally jointly and severally liable for the
company's debts.
Apparent
negligence is irrefutably presumed if either the company has not kept
sufficient accounts for all assets and liabilities to be determined at any time
or the annual accounts have not been filed with the Trade Registry in a proper
and timely manner. In addition, a rebuttable presumption exists that the failed
obligation to keep the accounts was an important cause of the company's
insolvency.
A
managing director can only be discharged from liability by showing that he was
not negligent and did not fail to meet his duty to take action to avoid or to
prevent the consequences of mismanagement. If failure of the duty to keep
accounts is insignificant, it is generally not taken into account and the
director is usually discharged from liability.
No
specific regulations exist in relation to liability for health and safety
issues. However, a director can be criminally liable if it is proved that he
contributed to the cause of health and safety issues by his consent or neglect.
Managing
directors can be held personally liable by the authorities or third parties for
environmental damage resulting from misconduct or serious mismanagement by a
director. In addition, a managing director can be criminally liable if it is
proved that he contributed to the breach of that regulations by his consent or
neglect.
Dutch
competition law can impose personal liability on directors for certain
anti-trust offences.
A
legal entity can be held criminally liable and the managing directors and the
individuals directly responsible for the company's criminal behaviour may face
criminal penalties for cyber-crime. This includes, among other things,
illegally accessing computers, tapping means of communication and electronic
theft.
Penalties
consist of fines for the company or the individual (shadow) director, or even
imprisonment for the (shadow) director. Cyber-crime may also qualify as a tort.
The managing directors can be liable for damages incurred by third parties,
depending on the circumstances of the case.
Non-compliance
with rules regarding the maintenance of the company's capital can impose
personal liability on managing directors.
The
managing directors of private companies are responsible for maintaining the
companies' financial position, and have to safeguard the liquidity position
specifically when (Flexible Private Company):
· The general meeting resolves to pay out (any kind of)
dividends.
· The company acquires shares or engages in third party
agreements.
· The company reduces its issued and paid-up share
capital.
At
these times, managing directors of private companies must either:
· Make an assessment as to whether the company will be
able to continue to meet its due and payable, and short term (that is, one year
term) liabilities, and deny the transaction in case the assessment turns out to
be negative.
· Face liability for the deficit if the managing
director foresaw or reasonably should have foreseen the deficit at the moment
of the transaction.
Generally,
managing directors of both public and private companies have to continuously assess
the liquidity and solvency position of the company. They should at least
refrain from entering into transactions on behalf of the company if it
(reasonably) can be foreseen that the company will not be able to perform the
obligation and will not provide suitable recourse for the damages incurred by
the creditor.
Failure
to notify the tax authorities of a company's future inability to pay tax
(including social security benefits) will, if that non-payment occurs, result
in the managing directors being personally liable for the tax owed by the
company.
UK (England and Wales)
Law stated as at 01-Apr-2011
A UK company cannot exempt a director from liability
to the company for breach of duty, negligence or other default. Any attempt to
do so is void.
In
limited circumstances, a company may provide an indemnity to a director against
certain liabilities. This may cover:
· The director's legal costs in civil claims brought by
a third party, even where the director loses.
· The cost of a court award made against a director in a
civil claim brought by a third party.
· The director's costs in fighting civil proceedings
brought by a regulator (such as the FSA).
· The director's legal costs in criminal proceedings,
but only if he is acquitted.
An
indemnity cannot cover the following:
· Any liability the director has to the company itself.
· Legal costs in civil cases brought by the company
where the final judgment goes against the director.
· Liability for fines for criminal conduct and civil
fines imposed by a regulator.
· Legal costs in criminal proceedings where the director
is convicted.
United States
Law stated as at 01-Dec-2012
Directors
owe the corporation and its shareholders a:
· Duty of care. This
generally requires that a director pay attention, ask questions and act
diligently in order to become and remain fully informed and to bring relevant
information to the attention of other directors.
· Duty of loyalty. This
generally requires that a director make decisions based on the corporation’s
best interest, and not on any personal interest.
In
determining whether a board of directors has satisfied its fiduciary duties,
the courts generally apply the business judgment rule under which a board’s
decision is protected unless it is shown that the directors breached their duty
of care or duty of loyalty.
Negligence
on the part of a director does not result in personal liability unless the
director failed to act in good faith.
Directors’
decisions may be more strictly scrutinised with respect to certain
transactions, including the sale or change of control of the corporation or in
conflict of interest situations.
A
director can be criminally liable under both federal and state laws regulating
theft and fraud. In addition, directors can be held liable under other federal
statutory schemes.
Directors
of public corporations can be held both civilly and criminally liable under
state and federal securities laws in a number of circumstances. For example,
directors cannot trade in a corporation’s securities when in possession of
material, non-public information (Rule 10b-5, 1934 Act). The federal
securities laws also impose liability on directors for intentional or reckless
misrepresentations or material omissions made in offering documents or proxy
solicitations.
In
recent years many courts and commentators have looked at whether the directors
of a corporation that is possibly insolvent (or in the zone of insolvency) or
actually insolvent owe their fiduciary duties to the corporation’s creditors.
The Delaware Supreme Court has held that where a corporation is in the zone of
insolvency or clearly insolvent, the directors have a fiduciary duty to
exercise their business judgment in the best interests of the corporation.
Creditors of an insolvent Delaware corporation have standing to maintain
derivative claims against directors on behalf of the corporation for breaches
of fiduciary duties but have no right to assert direct claims for breach of
fiduciary duty against corporate directors (North American Catholic
Education Programming, Inc. v Gheewalla, 930 A.2d (Del 18 May, 2007)).
See
below, Other.
See
below, Other.
See
below, Other.
See
below, Other.
Directors
are potentially personally liable under various federal statutory schemes in
areas such as health, safety, the environment and anti-trust. For example, the
Foreign Corrupt Practices Act of 1977 (FCPA) targets corrupt payments made by
corporations to certain foreign officials. Directors may be criminally liable
for knowing violation of the statute. The FCPA prohibits a company from
indemnifying its directors and officers for fines under the FCPA. For
additional information, see Shearman & Sterling LLP’s 2012 FCPA
Digest/Recent Trends and Patterns in the Enforcement of the Foreign Corrupt
Practices Act.
17. Can a director obtain insurance against personal
liability? If so, can the company pay the insurance premium?
France
Law stated as at 01-Apr-2011
Directors can be insured against the financial
consequences of any civil liability incurred by them, but not against fraud or
criminal acts. A director's civil liability insurance covering actions carried
out in the company's name, in his official capacity and in the absence of any
separate personal fault, is frequently paid for by the company.
Germany
Law stated as at 01-Apr-2011
Companies can purchase directors and officers
liability insurance (D&O insurance) for the management board members. These
insurance policies cover breaches of fiduciary duties and liability for
negligence. They usually exclude damages, penalties and fines arising from
wilful behaviour. The D&O insurance compensates the financial losses of the
company. Under the AktG, the insured members of the management board must carry
an excess of at least 10% of the incurred damages up to 1.5 times their fixed
yearly remuneration. The DCGK suggests the same rule for supervisory board
members.
India
Law stated as at 01-Apr-2011
An Indian company typically obtains directors and officers
(D&O) insurance policies for its directors and managers and pays the
insurance premium for those policies. These polices provide relief against
claims brought by the customers/clients or shareholders of the company against
the directors.
The Netherlands
Law stated as at 01-Dec-2012
Liability for the issues identified in Question 16 cannot be restricted or limited. The managing
directors of the private company may each exculpate their personal joint and
several liability for deficits arising from dividends, capital mutations or
third party transactions or any other payment to shareholders by showing that
he at least voted against the proposal of his board members to make the payment
(preferably evidenced by the minutes) and he can prove that he was not
negligent in taking measures to prevent the consequences of the deficit. This
concerns new legislation and case law has yet to develop a clear doctrine on
how directors may exculpate their liability for these deficits.
A
company sometimes indemnifies its managing directors for civil liability claims
against them. This has not yet been recognised by law. Arguably the purpose of
civil liability is defeated by this indemnity and it can be declared void.
UK (England and Wales)
Law stated as at 01-Apr-2011
UK companies commonly insure their directors against
personal liability and pay the annual premium for what is called a directors'
and officers' (D&O) insurance policy. The Code regards this as best
practice.
A
D&O policy commonly provides insurance cover for each director, as well as
cover for the company if it meets a director's liability itself. As with an
indemnity, criminal and civil fines and penalties are not covered, and claims
related to North America are often restricted.
United States
Law stated as at 01-Dec-2012
Most
states allow a corporation to eliminate or limit directors’ personal liability
to the corporation or its shareholders for breach of their fiduciary duty.
However, there are often restrictions on this limitation of directors’
liability. For example, Delaware law provides that directors’ liability cannot
be eliminated or limited for:
· Any breach of the director’s duty of loyalty.
· Acts or omissions not in good faith or involving
intentional misconduct.
· Wilful or negligent conduct in paying dividends.
· Any transaction from which the director derives an
improper personal benefit.
Corporations
often adopt provisions in their certificates of incorporation eliminating
directors’ liability to the fullest extent permitted by law.
State
law also provides that a company may indemnify a director in certain
circumstances. Under Delaware law, any person made a party to proceedings for
being the corporation’s director is entitled to indemnification, provided that
the individual both:
· Acted in good faith.
· Reasonably believed that he acted in the corporation’s
best interests.
Indemnification
is mandatory if the director is successful in the proceedings. Indemnification
statutes often have restrictions (for example, a corporation cannot normally
indemnify a director against liabilities owed to the corporation). Many
corporations also provide contractual indemnities to their directors, in
addition to the indemnification provided by state law.
18. Can a third party (such as a parent company or
controlling shareholder) be liable as a de facto director (even though such
person has not been formally appointed as a director)?
France
Law stated as at 01-Apr-2011
Any person de facto managing a
company under the cover of, or in place of, its legal representatives, incurs
the same civil and criminal liability as the official directors. This includes
having to contribute to corporate losses in case of insolvency proceedings.
Germany
Law stated as at 01-Apr-2011
Jurisprudence introduced the liability of a third
party (a natural person but not a legal person) as a de facto director. A de
facto director is a natural person who acts like a director also in relation to
the outside world even though such person has not been formally appointed as a
director. In relation to liability, this person is treated by law as if he has
been formally appointed as a director. However, this doctrine is rarely applied
in practice.
India
Law stated as at 01-Apr-2011
If a company does not appoint its first directors on
formation, then the subscribers to the memorandum of association of the company
who are natural persons will be deemed to be the company's directors and
subject to the same duties as duly appointed directors (see Question 15).
The Netherlands
Law stated as at 01-Dec-2012
Some insurance companies provide insurance for civil
liability claims against directors (see Question 17). The company typically pays the insurance premium.
UK (England and Wales)
Law stated as at 01-Apr-2011
The definition of a director in the Companies Act 2006
includes "any person occupying the position of a director, by whatever
name called". Whether a person is a director does not depend on whether
they have been properly appointed as such, but rather on the role they play in
the company's management. If they attend and speak and vote at board meetings
as if they were a director, they may be treated as a de facto director and have
all the legal responsibilities and duties described in this chapter.
This
is different from a shadow director, which is defined as "a person in
accordance with whose directions or instructions the directors of the company
are accustomed to act". That implies a person who tells the board what to
do and a board which is used to complying with those instructions. The
definition excludes a parent company (but not a dominant individual at a parent
company). A shadow director has some, but not all, of the responsibilities of
board members.
United States
Law stated as at 01-Dec-2012
Public companies typically obtain insurance on behalf
of directors to cover any error, misstatement, misleading statement, act,
omission, neglect or breach of duty. In addition, because one of the most
serious concerns for officers and directors are the legal fees associated with
frivolous claims, insurance typically covers the legal fees from a criminal
proceeding or any formal civil administrative or regulatory proceeding.
However, insurance cannot be purchased to protect directors against liability
based on the director’s fraud, dishonesty or violations of criminal law.
Transactions with directors and conflicts
France
Law stated as at 01-Apr-2011
Directors' decisions must comply with the company's
interests; otherwise liability can be incurred for mismanagement.
Germany
Law stated as at 01-Apr-2011
Management and supervisory board members must act in
the best interests of the company. This rule is expressed through the fiduciary
duties of the board members and a no-competition clause in the AktG. Major
guidance about the treatment of conflicts of interest comes from the DCGK. The
DCGK's provisions are based on transparency and recommend the following:
· Management board. All
management board members must disclose conflicts of interest to the supervisory
board without delay and inform the other members of the management board of any
conflicts. All transactions between the company and management board members as
well as persons they are close to or companies they have a personal association
with must comply with standards customary in the sector. Important transactions
must require the approval of the supervisory board.
· Supervisory board. Each supervisory board member must inform the
supervisory board of any conflicts of interest which may result from a
consultant or directorship function with clients, suppliers, lenders or other
business partners. The shareholders' meeting must be informed of any conflicts
annually. Material conflicts of interest may result in the termination of the
mandate. Advisory and other service agreements between a supervisory board
member and the company require the supervisory board's approval.
India
Law stated as at 01-Apr-2011
Directors have a fiduciary position towards the
company. They must ensure that their personal interests do not conflict with
the company's interests. A director must disclose any interest he may have in a
contract or arrangement (section 299, Act). In relation to public
companies, an interested director must not participate or vote in the
proceedings of the board concerning a contract or an arrangement in which the
director is interested, nor will his presence count for the purposes of quorum
at the time of any such discussion (section 300, Act). The provisions of
section 300 of the Act are not applicable to a private company.
The Netherlands
Law stated as at 01-Dec-2012
In relation to the insolvency of a company, a person
who has determined, or jointly determined, the policy of the business of a
company as if he were a director is liable in the same way as a director (see Question 16).
UK (England and Wales)
Law stated as at 01-Apr-2011
Directors of a UK company have a duty to act in a way
most likely to promote the success of the company for the benefit of
shareholders as a whole. Where there is an actual or potential conflict between
the interests of the company and the personal interests of a director, that duty
is likely to require that the company's interests be preferred.
Apart
from that general duty, there are specific duties relating to conflicts of
interest (see Question 15, General duties). The duty to avoid a situation where a conflict may
arise applies also to a conflict of duty and so may cover a director:
· Having an interest in a commercial opportunity that
could also be exploited by the company.
· Who uses for his own purposes information which is
confidential to the company.
· Who sits on two boards where his duties to each may conflict,
even where they are members of the same group.
A
company's articles can allow other board members to authorise such a conflict
and so allow the director concerned to remain in post.
A
director must declare an interest in a proposed contract before it is entered
into. The articles may provide if the director can take part in a board meeting
considering such a contract and if he can vote on a related resolution. If a
director was not aware of his interest when the contract was entered into, or
joined the board after the event, he must declare his interest to his board
colleagues as soon as reasonably practicable.
United States
Law stated as at 01-Dec-2012
A shareholder’s loss is normally limited to the amount
of its investment in a corporation. However, where the corporate form is
misused, most typically for fraud, the courts can pierce the corporate veil,
and controlling shareholders may be held liable for the corporation’s
obligations. Generally, the courts only pierce the corporate veil for closely-held
corporations. Shareholders who hold a controlling interest may have “control
person” liability under the federal securities laws. Shareholders who hold a
controlling interest may also be deemed to owe a fiduciary duty to minority
shareholders.
France
Law stated as at 01-Apr-2011
Any direct or indirect agreements entered into between
a company and its CEO, chairman, directors, supervisory or management board members,
or any shareholder owning more than 10% of the voting rights, are governed by a
specific disclosure and review procedure.
There
are three categories of related-party agreements:
· Prohibited agreements (for example, borrowing or
obtaining a guarantee from the company).
· Unrestricted agreements, which are agreements entered
into in the normal course of business and under normal conditions.
· Other agreements that are subject to prior approval by
the board of directors or the supervisory board.
A
special report on these agreements drafted by the statutory auditors is
submitted to the shareholders' meeting for further approval. Rejected
agreements remain in force except in cases of fraud.
Germany
Law stated as at 01-Apr-2011
In
general, the law deals with the risk inherent in these
"self-dealings" by:
· The requirement that these transactions must be at
arm's length.
· The statutory provision that the supervisory board
must represent the company in transactions with the members of the management
board.
In
addition, these transactions must comply with the rules relating to conflicts
of interest (see Question 19).
India
Law stated as at 01-Apr-2011
A public company is subject to certain restrictions
when granting a loan to its directors. A private company can freely grant loans
to its directors.
Further,
the following cannot enter into a contract with a company for the sale,
purchase or supply of any goods, materials or services or for underwriting the
subscription of any shares, or debentures of the company, except with the
consent of the board (section 297, Act):
· A director of a company or his relative.
· A firm in which such a director or relative is a
partner, or any other partner in such a firm.
· A private company of which the director is a member or
director.
The Netherlands
Law stated as at 01-Dec-2012
Company law does not provide specific rules on when a
conflict of interest between a director and the company occurs. Case law
indicates that an assessment should be made as to whether a material conflict exists
(that is, personal interests of managing director no longer aligns with
interests of company) rather than a formal test based on the type of
transaction (for example, between companies both owned by different family
members) or positions a person may hold (for example, managing director of both
companies).
The
Amendment Management and Supervision provides that a conflict of interest
exists if the direct or indirect personal interests of the managing director
conflicts with the interests of the company or its business.
Current
statutory law provides that if there is any conflict of interest between a
company and one or more of its managing directors, in relation to a transaction
or generally, the company is represented by its supervisory board, unless:
· The articles state otherwise.
· A general meeting appoints one or more other persons
to represent the company (if this happens, the supervisory board can no longer
represent the company). This can be a managing director.
When
there is a conflict of interest it is generally assumed that if the articles do
not specify otherwise and a company has no supervisory board, a company can be
represented by either its:
· Managing directors who have no conflict of interest,
at the mandate of the general meeting of shareholders.
· A different person appointed by a general meeting to
represent the company.
The
rules on the authority to represent the company if one or more managing
directors has a conflict of interest will be changed by the Amendment
Management and Supervision. Following the amended law, the director with a
conflict of interest is restricted from taking part in the deliberations and
resolutions of the managing board on the conflicted matter. If this would
result in the managing board not being able to resolve on the matter, then the
supervisory board resolves on the matter. If no supervisory board is installed,
the general meeting resolves, unless the articles provide otherwise. Failing to
comply with these provisions can result in the nullity of the resolution
concerned and personal liability of the director towards the company.
Similarly, a conflicted supervisory director does not take part in the
deliberations and resolutions of the supervisory board. The general meeting resolves
on matters on which the supervisory board cannot resolve as a result of the
conflict of interest of its supervisory director.
The
Amendment Management and Supervision also provides that, regardless of a
conflict of interest, a managing director can represent the company in the
conflicted transaction, subject to the general limitation of his authority if
any. However, he faces liability if he has not observed the rules described
above regarding deliberations and board resolutions.
The
CGC has a general principle that a conflict of interest between a listed
company and its managing directors should be avoided, and states that a
managing director must:
· Not compete with the company.
· Not demand or accept substantial gifts from the
company for himself or for, among others, his wife, registered partner or
child.
· Not provide unjustified advantages to third parties to
the detriment of the company.
· Not take advantage of business opportunities to which
the company is entitled for himself or for, among others, his wife, registered
partner or child.
· Immediately report a potential conflict of interest to
the company, the supervisory board chairman and managing directors.
· Not take part in discussions or decision-making
involving a subject or transaction in relation to which the managing director
has a conflict of interest.
The
CGC states that a transaction in which there are conflicts of interest between
a listed company and its managing directors must:
· Only be entered into on terms that are customary in
the sector concerned.
· Be approved by the supervisory board.
· Be published in the company's annual report.
UK (England and Wales)
Law stated as at 01-Apr-2011
A transaction whereby a director buys from or sells to
his company an asset above a certain value must be approved by shareholders.
That value is currently set at GB£100,000 or 10% of the company's net asset
value, as shown in a company's last accounts (where 10% is equivalent to at
least £5,000). The rule applies equally to a subsidiary and a director of its
holding company, in which case the shareholders of the holding company also
must approve the deal.
Loans
and similar transactions involving a company and one of its
directors are generally permitted if shareholders have given their approval
(and if the loan is made by a subsidiary to a director of its parent company,
the parent's shareholders also need to consent). A memorandum setting out the
terms and purpose of the loan must be made available to the shareholders before
the vote.
Shareholder
approval is not required for loans to a director with an aggregate value up to
£10,000, nor for loans made to a director for the purpose of defending a claim
against him. In addition, a company in the business of lending money can make a
loan to a director provided the terms are no more generous than would be
offered to an outsider. Any company can lend to a director of a subsidiary or
fellow subsidiary, provided he is not also a director of the lending company.
The
category of loans requiring shareholder approval is widened for a public
company, or a company in the same group as a public company, and includes loans
to family members and others connected with a director, credit transactions and
related guarantees and security. Use of a company credit card can also be
caught.
If
a company has a premium listing on the London Stock Exchange and it (or a
subsidiary) wants to enter into a transaction with a director of any company in
the same group, a circular must go to the shareholders of the listed company
which explains and values the transaction and the shareholders must approve the
deal. Exemptions from these requirements apply in certain limited
circumstances.
United States
Law stated as at 01-Dec-2012
The duty of loyalty requires a director to act in the
best interests of the corporation and not for personal profit or gain or for
other advantages that do not benefit the corporation. A director can be held
liable to the corporation if he allows an actual or potential conflict between
his personal interests and the best interests of the corporation to obscure his
ability to make decisions objectively.
Under
the corporate opportunity doctrine, where a business opportunity becomes known
to a director due to his position with the corporation, the director owes a
duty to the corporation not to use that opportunity or knowledge for his own
benefit.
Self-dealing
transactions are voidable under common law, but many states have safe harbour
statutes (for example, §144(a) of the Delaware General Corporation Law) that
generally provide that a transaction is not voidable if either:
· It is approved by either informed or disinterested
directors or shareholders.
· The transaction is fair to the corporation.
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