Section 272: Unanimous agreement by shareholders

272. Unanimous agreement by shareholders (1) Where all shareholders of a private company agree to or concur in any action which has been taken or is to be taken by the company— (a) the taking of that action is deemed to be validly authorised by the company, notwithstanding any provision in the constitution of the company; and (b) the provisions of this Act referred to in the Eleventh Schedule shall not apply in relation to that action. [Issue 1] C35 – 162 Revised Laws of Mauritius (2) Without limiting the matters which may be agreed to or concurred in under subsection (1), that subsection shall apply where all the shareholders of a private company agree to or concur in— (a) the issue of shares by the company; (b) the making of a distribution by the company; (c) the repurchase or redemption of shares in the company; (d) the giving of financial assistance by a company for the purpose of, or in connection with, the purchase of shares in the company; (e) the payment of remuneration to a director (or member in the case of a small private company) or the making of a loan to a director (or member) or the conferral of any other benefit on a director (or member); (f) the making of a contract between an interested director (or member in the case of a small private company) and the company; (g) the entry into a major transaction; or (h) the ratification after the event of any action which could have been authorised under this section. (3) Where— (a) a distribution is made by a company under this section; and (b) as a consequence of the making of the distribution, the company fails to satisfy the solvency test, the distribution is deemed not to have been validly made. (4) A distribution to a shareholder which is deemed not to have been validly made may be recovered by the company from the shareholder unless— (a) the shareholder received the distribution in good faith and without knowledge of the company’s failure to satisfy the solvency test; (b) the shareholder has altered his position in reliance on the validity of the distribution; and (c) it would be unfair to require repayment in full or at all. (5) Where reasonable grounds did not exist for believing that the company would satisfy the solvency test after the making of a distribution which is deemed not to have been validly made, each shareholder who agreed to or concurred in the making of the distribution is personally liable to the company to repay to the company so much of the distribution as is not able to be recovered from the shareholders to whom the distribution was made. (6) Where in an action brought against a shareholder under subsection (4) or (5), the Court is satisfied that the company could, by making a distribution of a lesser amount, have satisfied the solvency test, the Court may— (a) permit the shareholder to retain; or C35 – 163 [Issue 10] Companies Act (b) relieve the shareholder from liability in respect of, an amount equal to the value of any distribution that could properly have been made. (7) Notwithstanding any other provisions of this Act, all the shareholders or members of a private company may, by agreement in writing, restrict in whole or in part the discretion and powers of the directors of the company to manage the business and affairs of the company and may confer on any person who is a party to such agreement, whether or not a shareholder, a member or director of the company, such powers and discretions as they think fit. (8) A person who is a party to a unanim een made. (7) Notwithstanding any other provisions of this Act, all the shareholders or members of a private company may, by agreement in writing, restrict in whole or in part the discretion and powers of the directors of the company to manage the business and affairs of the company and may confer on any person who is a party to such agreement, whether or not a shareholder, a member or director of the company, such powers and discretions as they think fit. (8) A person who is a party to a unanimous shareholder agreement under subsection (7) on whom such powers and discretions are conferred shall have, to the extent that such agreement so provides, all the rights, powers and duties incurred in relation to the exercise of such rights, powers and duties all the liabilities of a director of the company under this Act and the director or directors concerned shall, to such extent and, subject to section 131 (2), be relieved of their duties and liabilities. (9) Where a person who is a holder or registered owner of all the issued shares of a private company makes a declaration in writing that restricts in whole or in part the discretion and powers of that director to manage the business and affairs of the company, the declaration shall be deemed to be a unanimous shareholder agreement. (10) A unanimous shareholder agreement under subsection (7) shall not have effect until all the directors of the company, and in the case of a company holding a Global Business Licence, its management company and in the case of an Authorised Company, its registered agent shall have been notified of its contents, and notice of the entry into of the agreement and its effect has been given to the Registrar. (11) Nothing in subsections (7) to (10) shall operate to relieve persons who are directors of the company of their obligations to file any return or notice with the Registrar required by this Act. [S. 272 amended by s. 13 (n) of Act 11 of 2018 w.e.f. 1 October 2018.] PART XXII – FOREIGN COMPANIES