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Tutorial 5Building on content from Lecture 5 (Restrictions on Member Decision-Making andDirectors and Other Officers)ReadingsHargovan, Chapters 14 and 19.1-19.4TasksQuestion 1Pets Pty Ltd (Pets) operates a business selling pet products (dog and cat food, kitty litter, leashes,etc) all around Australia.Pets is owned by Merve, Silvia, Roger and Oliver. Merve and Silvia together own 75% of the sharesand are Managing Director and Company Secretary respectively. Roger and Oliver own 25% of theremaining shares between them.Although they are minority shareholders, Roger and Oliver like to be informed about everything thatis happening in the business. As they have indicated that they might like to invest more money inPets, Merve and Silvia have indulged them by discussing company matters that are not within theirpower as shareholders.However, this practice has become very time consuming, especially because Merve and Silvia andRoger and Oliver disagree about many things. For example, Merve and Silvia are convinced that Petsneeds to capitalise on the new interest in pet ownership by purchasing a dog kennel that breeds pugdogs. Roger and Oliver are opposed to buying that business on grounds that it is a puppy farm. Thereis an acrimonious discussion about the topic, one of many.Merve and Silvia have recently met Brandy, who runs a small private equity business. She seespotential in Pets and has offered to refinance Pets. Specifically, she has offered to provide enoughmoney to Pets to buy out Roger and Oliver’s share of the capital and purchase the dog kennel.However, Roger and Oliver don’t want to sell their shares.Merve and Silvia wonder whether they can pass a resolution to change the constitution to forceRoger and Oliver to sell their shares to them (Merve and Silvia). They tell you that there is a‘desperate need to harmonise relationships between the shareholders and management’ and thatthey would be willing to Roger and Oliver 75% of the estimated market price, as calculated by thecompany accountant. Considering the equitable limit on minority voting power, is the constitutionalamendment within Merve and Silvia’s power? Explain your answer

Question

Tutorial 5Building on content from Lecture 5 (Restrictions on Member Decision-Making andDirectors and Other Officers)ReadingsHargovan, Chapters 14 and 19.1-19.4TasksQuestion 1Pets Pty Ltd (Pets) operates a business selling pet products (dog and cat food, kitty litter, leashes,etc) all around Australia.Pets is owned by Merve, Silvia, Roger and Oliver. Merve and Silvia together own 75% of the sharesand are Managing Director and Company Secretary respectively. Roger and Oliver own 25% of theremaining shares between them.Although they are minority shareholders, Roger and Oliver like to be informed about everything thatis happening in the business. As they have indicated that they might like to invest more money inPets, Merve and Silvia have indulged them by discussing company matters that are not within theirpower as shareholders.However, this practice has become very time consuming, especially because Merve and Silvia andRoger and Oliver disagree about many things. For example, Merve and Silvia are convinced that Petsneeds to capitalise on the new interest in pet ownership by purchasing a dog kennel that breeds pugdogs. Roger and Oliver are opposed to buying that business on grounds that it is a puppy farm. Thereis an acrimonious discussion about the topic, one of many.Merve and Silvia have recently met Brandy, who runs a small private equity business. She seespotential in Pets and has offered to refinance Pets. Specifically, she has offered to provide enoughmoney to Pets to buy out Roger and Oliver’s share of the capital and purchase the dog kennel.However, Roger and Oliver don’t want to sell their shares.Merve and Silvia wonder whether they can pass a resolution to change the constitution to forceRoger and Oliver to sell their shares to them (Merve and Silvia). They tell you that there is a‘desperate need to harmonise relationships between the shareholders and management’ and thatthey would be willing to Roger and Oliver 75% of the estimated market price, as calculated by thecompany accountant. Considering the equitable limit on minority voting power, is the constitutionalamendment within Merve and Silvia’s power? Explain your answer

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Solution

The situation described involves a potential conflict between majority and minority shareholders in a company. The majority shareholders, Merve and Silvia, are considering changing the company's constitution to force the minority shareholders, Roger and Oliver, to sell their shares.

The question is whether this is within Merve and Silvia's power, considering the equitable limit on minority voting power.

The equitable limit on minority voting power is a principle that protects minority shareholders from being unfairly prejudiced by the actions of majority shareholders. This principle is based on the idea that while majority shareholders have the right to control the company, this power should not be used in a way that is detrimental to the interests of minority shareholders.

In this case, Merve and Silvia own 75% of the shares and therefore have the power to pass a resolution to change the company's constitution. However, this power is subject to the equitable limit on minority voting power.

If Merve and Silvia were to use their majority power to force Roger and Oliver to sell their shares at a price below market value, this could be seen as unfairly prejudicial to Roger and Oliver. This is because they would be forced to sell their shares at a loss, and would also lose any future profits from the company.

Therefore, while Merve and Silvia technically have the power to change the constitution, they would need to be careful not to breach the equitable limit on minority voting power. They would need to ensure that any changes to the constitution are fair and do not unfairly prejudice Roger and Oliver.

In conclusion, while Merve and Silvia have the power to change the constitution, they would need to do so in a way that respects the rights of minority shareholders. This could involve offering Roger and Oliver a fair price for their shares, or finding another solution that respects their rights as shareholders.

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