There exists no legal obligation to designate a managing director within a company. Hence, the decision to appoint one is entirely driven by discretion and practical considerations.
Nevertheless, when the responsibilities of the role are well-defined, the company gains a stronger foundation to depose the managing director if their performance falters.
The scope of responsibilities for a managing director spans from the obligation to steer clear of conflicts of interest to revealing instances of self-dealing and advancing the company’s welfare.
These same duties apply to all directors, extending beyond just those in the managing director role. Adhering to these regulations is an imperative undertaking.
In this context, we delineate pivotal legal focal points tailored for managing directors while shedding light on potential consequences of disregarding these directives for managing directors and their directorial counterparts
Common misconceptions about Managing Directors
We often come across a misconception held by numerous businesses, wherein they erroneously subscribe to one or more of the following notions:
- Misunderstanding Managing Director Status: There’s a prevalent belief that the position of a managing director carries additional legal commitments and responsibilities. However, this perspective is misguided in terms of company law. The duties assigned to directors are uniformly applicable to all, irrespective of their titles. The fiduciary and statutory responsibilities, as outlined by the Companies Act 2006, are consistent for all directors, even encompassing non-executive ones.
- Erroneous Notion about Removal Complexity: Another commonly held fallacy revolves around the assumption that it’s more legally intricate to oust a Managing Director from their role. Contrary to this notion, initial assumptions are off the mark. The Companies Act empowers the majority of a company’s shareholders to effectuate the removal of a director. Admittedly, the process can be time-consuming. To circumvent potential business disruptions, it’s customary to devise a concise and straightforward removal procedure within the director’s service agreement. This pragmatic approach ensures a streamlined process, averting unnecessary upheaval.
1. You don’t have to have a director service agreement
A written service agreement is not obligatory for the enlistment of a Managing Director. Typically, a director’s status also entails an employment role, each bearing distinct responsibilities. In cases where a written service agreement is absent, the company could potentially encounter challenges when aiming to terminate the managing director from either or both capacities.
The extent of authority vested in a managing director should ideally be detailed within the service agreement. Nevertheless, it’s important to note that these powers remain subject to the regulations stipulated by the Companies Act. These provisions are essentially designed to safeguard the interests of minority shareholders.
2. Important issues for Board or shareholder approval
While a Managing Director might possess greater day-to-day involvement and authority compared to other directors, recognizing that not all directors are actively engaged in business operations and obtaining Board consent for every decision is impracticable, there are specific matters wherein obtaining full Board and/or shareholder approval is not only common but also highly advisable. These encompass:
It’s prudent for the company’s articles to outline a prescribed procedure as a safeguard measure. According to the Companies Act, the endorsement of the company’s shareholders is necessitated for:
- Long-Term Service Contracts: These involve agreements with directors that extend beyond a guaranteed term of two years.
- Significant Property Transactions: These pertain to transactions conducted with a company that is “connected” to a director. An illustration of this would be if the Managing Director is a named director of Company A, and Company A enters into an agreement to acquire an asset from Company B, in which the Managing Director holds a 40% stake. Such cases fall under the “connected” category and require approval.
- Loans, Credit Facilities, and Quasi-Loans: There’s a threshold set by the Companies Act, below which approval isn’t mandated.
- Compensation for Termination: Payments made due to the termination of a director’s position.
However, there exist certain exceptions where shareholder approval may not be obligatory. For instance, there’s a de minimis provision in place for significant property transactions and loans involving directors. It’s imperative to verify the specific conditions before proceeding.
In cases where shareholder approval is not sought, the resulting implication is that the corresponding contract or transaction could be rendered void. This outcome means that the contract or transaction could potentially be reversed.
3. Perception of Managing Director authority
Internally, there could exist agreements delineating the extent or confines of the managing director’s jurisdiction. Yet, from a legal perspective, external entities are typically within their rights to presume that the Managing Director possesses the authority to commit the company.
Unless a third party has been explicitly informed that a Managing Director lacks the effective capacity to commit the company, that third party holds the right to presume that the Managing Director holds such authority. This presumption remains applicable irrespective of the significance or worth of the subject at hand, or the contractual arrangement involved.
4. Interaction between directorship and shareholding is important
A shareholders’ agreement holds substantial advantages for a managing director who also happens to be a shareholder. This agreement can:
- Preserve Equity: In the event of the managing director’s departure, the agreement can safeguard his ownership interest, allowing him to retain some or all of his shares.
- Prevent Equity Dilution: The agreement can prevent the erosion of the managing director’s ownership stake, ensuring that he is given first preference when new shares are intended to be issued to external parties.
- Address Leaver Provisions: In cases of voluntary resignation or dismissal, the agreement can outline provisions that dictate the handling of the managing director’s shares, facilitating their buyback at par value.
- Mandate 100% Voting Obligation for Dismissal: The agreement can enforce an absolute requirement for unanimous shareholder voting to effectuate the dismissal of the managing director.
- Stipulate 100% Shareholder Approval for Director Appointments: The agreement can dictate that the appointment of new directors necessitates unanimous shareholder agreement.
- Establish Powers of Veto: By incorporating powers of veto, the managing director gains influence over the business’s operations. This authority can override decisions made by shareholders.
Furthermore, a shareholders’ agreement can confer the managing director with the authority to initiate specific transactions without the prior consultation of the company’s shareholders. However, it’s crucial to note that this authority must align with the stipulations of the Companies Act, underscoring the importance of meticulous drafting to ensure compliance.
5. Liability of directors
A Managing Director’s legal obligations don’t inherently surpass those of other directors. However, due to their prominent role as a pivotal decision-maker, the practical exposure to personal liability risks tends to be higher. Noteworthy areas of vulnerability encompass:
- Fraudulent and Wrongful Trading: When a company’s liquidator substantiates that the concerned director managed the business during a period where financial recovery was improbable, such as in cases where insolvency was inevitable, it could result in allegations of fraudulent or wrongful trading.
- Guarantee Agreements: Directors might be inclined to secure financial arrangements for the company, sometimes involving personal guarantees for the company’s repayment. If the company defaults, creditors might pursue the directors for repayment, putting personal assets at stake.
- Shareholder Claims: Minority shareholders possess rights, including the ability to initiate claims on the company’s behalf against a defaulting director. Courts could mandate the director to compensate the company for losses and might even issue cost awards against the implicated director.
While the legal obligations themselves may not differ, the pivotal role of a Managing Director can amplify exposure to potential personal liabilities. This underscores the importance of a proactive approach to understanding and mitigating these risks.
Conclusion
In conclusion, navigating the legal landscape as a managing director demands a comprehensive understanding of the intricacies associated with this pivotal role. While a managing director doesn’t inherently carry distinct legal obligations, their central position as decision-makers often places them at the forefront of potential legal risks and liabilities.
From ensuring compliance with directorial duties shared among all directors to recognizing the significance of shareholder agreements that safeguard both equity and decision-making influence, managing directors must be well-versed in a diverse array of legal considerations.
The potential for personal liability is heightened by their leadership role, particularly in areas encompassing fraudulent trading, personal guarantees, and shareholder claims.
By appreciating these key legal points and proactively addressing associated challenges, managing directors can effectively navigate the legal terrain, contribute to the success of their companies, and protect their interests in a dynamic business environment.
David is a Solicitor and Chartered Tax Advisor. David has many years experience of advising clients on Regulatory Fraud matters, involving the smallest to the very biggest cases.
He regularly lectures to the City of London Police on these and related issues. He regularly advises on Confiscation and other consequences that flow from money laundering offences