There are many different possible solutions, the most appropriate being depending on the circumstances of each company. It could be so easy to include the right for personal representatives to appoint a director after the death of a single director, or to accept the right to give surviving shareholders the first opportunity to buy the deceased`s shares. Or there may be an option agreement that will be triggered in the event of death and that will allow the beneficiaries to buy back the remaining shareholders. Such an option agreement may be covered by a life insurance policy in order to provide the money needed for this purpose. If the company has more than one director, the company can still operate as usual. In practice, the remaining directors will share the responsibilities of the deceased shareholder. However, it should be noted that the death of a director may leave difficulties in reaching a quorum for meetings, depending on what is stipulated in the company`s articles of association. 5. Death or incapacity of a shareholder In the event of the death of a shareholder, the shares of the deceased, without a shareholders` agreement, will probably pass through his estate to a spouse or a member of his family. This new shareholder cannot be an ideal business partner for surviving shareholders for a number of reasons. Similarly, the deceased shareholder must not intend to impose affiliation with the company on his family member. A shareholders` agreement can prevent this by offering surviving shareholders the opportunity to acquire the shares on the deceased`s shares. A similar option can be implemented if a shareholder loses his or her ability to act.
These problems can be mitigated by the inclusion of specific provisions in tailor-made articles of association and/or a shareholder/company contract that could define the procedure to be followed in the event of the death of a shareholder or partner. This may include forced transfer provisions, subscription rights (the deceased`s shares must be offered to the remaining shareholders or the company before they can be offered to someone else) as well as the establishment of a method of valuation of a commercial share for sale. Critical illness insurance allows a company to continue paying a shareholder if it cannot work due to a critical illness. Key personal insurance can also be taken out to cover the costs of replacing the shareholder`s professional role for a shareholder who is unable to work in the company. Insurance brokers or financial advisors are in the best position to advise on the terms of available policies, but when they are underwritten, it is essential to ensure that they are reflected in the shareholders` agreement or articles of association, in order to avoid any bulk end. However, problems can arise when private companies have model associations or if they were created before October 1, 2009 with table A articles. These standard corporate rules contain very few restrictions on the transfer of shares, and both allow a shareholder to choose without restriction to whom he bequeaths his shares. They also allow the beneficiary to freely choose whether he wishes to become the holder of the shares or transfer the shares to another person.
Since articles of association are a legal priority, these model rules could prevent existing shareholders from prohibiting the transfer of shares to an undesirable third party (even if the third party works for a competing company). A mandatory transfer provision obliges shareholders to sell their shares in certain situations such as retirement, termination of the employment relationship in the company, bankruptcy, incapacity for work or death. This provision allows the company to buy back the shares, sell them to existing members or third parties and protect the interests of the company. What happens next to the shares depends on the company`s articles of association, the shareholder contract (if any) and the age of the beneficiaries of the shares. . . .