Unintended consequences may occur if operating agreements and shareholder agreements are not changed, if the business or objectives of the company change. Nevertheless, the courts will sometimes apply the agreement to be the subject of the parties` intent and to apply it to the new real context. For example, an amendment that explicitly recognizes a two-year delay was considered a permanent amendment to an enterprise agreement in the Daniel/. Ripoli, 2016 IL App (1st) 122607-U (Ill. App. November 16, 2016) because it did not have a start or end date. Conversely, a strict reading in Veterans Contracting Group, Inc. v. United States, 2017 WL 6505208 (Fed).
Cl. 20. Dec 2017). There, the court sought a shareholders` pact to determine whether the applicant met certain standards of ownership and control. Since the agreement required, in certain circumstances (for example. B death or bankruptcy), the withdrawal of shares, the applicant did not have his shares „unconditionally” and was therefore not eligible for the program at issue. In the first case, La Re Vocam Europe Ltd[1998] BCC 396, the High Court had stayed a complaint of unfair prejudice, in which a shareholders` pact provided that all contentious cases would be referred to arbitration proceedings. In the second case, Exeter City Association Football Club Ltd/Football Conference Ltd [2004] 1 WLR 2910, the High Court had refused a stay on the grounds that the legal rights granted to shareholders on request for exemption were inalienable and could not be contractual (for example. B an arbitration agreement), neither diminished or deleted.
Dickson Holdings Enterprise („DHE”) and Moravia CV („Moravia”) have established a Hong Kong company („company”) for a real estate development project in China, and the three parties have jointly entered into a shareholders` agreement („shareholders` pact”). Relations between the parties eventually deteriorated. In particular, DHE claimed that Moravia had prompted the company`s board of directors to make an illegitimate and arbitrary decision that led to the forfeiture of DHE`s shares. DHE did not receive a communication for the Board of Directors meeting at which this result was adopted. DHE therefore submitted that there was undue prejudice for breach of directors` fiduciary duties (for the exercise of directors` powers for unlawful purposes) and also for violation of the company`s statutes (for the non-disclosure of the board meeting and the unlawful application of forfeiture provisions on the shares paid). The applicant was an investment fund and a minority shareholder in a joint venture with another company, which was „the majority shareholder.”
