Director and Corporate Secretary Duties in Foreign Countries...Director and Corporate Secretary Duties in Foreign Countries July 20, 2011 ©2011 Foley & Lardner LLP 2 Today’s Presenters

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Director and Corporate Secretary Duties in Foreign Countries

July 20, 2011


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Today’s Presenters

Robin JohnsonPartnerEversheds LLP

Tony McGovernPartnerEversheds O'Donnell Sweeney

Sean RyanPartnerEversheds O'Donnell Sweeney

Alexander NiethammerPartnerHeisse Kursawe Eversheds



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Today’s Presenters

Eric KnaiPartnerEversheds LLP

Daniela MurerPartnerEversheds Bianchini

Dawn SandersonAssociateEversheds LLP

Kevin D. MakowskiPartnerFoley & Lardner LLP


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Introduction

Robin JohnsonEversheds LLP


Directors Duties and Liabilities

Ireland

Sean Ryan & Tony McGovernEversheds LLP



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Types of Company Director

Shadow DirectorsAlternate DirectorsDe Factor DirectorsExecutive DirectorsNon-Executive Directors


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Duties and Obligations

Wide and DiversePrimarily two sources

Duty to convenegeneral

meetings

Duty ofdisclosure

Duty to makesatisfactory

filings

Duty to maintainstatutoryregisters Insolvent

company

Duty to havean annual

auditperformed

Duty to prepare annual

accounts

Duty to maintain

proper booksof account

Transactionswith

company

Duty as an officer

of the company

Statute

Personally liable for reckless trading

Criminal offence

True and fair view of company affairs

Directors responsible

Share transfer

payments

Interest in contracts

Interest in shares

Duty to comply with companies acts

Breach – Authorises/Permits default

Auditor required to report to members

LiquidatorCooperate with Liquidator

May need shareholder approval

Voidable at instance of company

Loans/Quasi loans generally prohibited



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Duties and Obligations (cont…)Wide and DiversePrimarily two sources

Due care, skill and diligence

Cannot makeundisclosed profit

from positionas Director

Exercise powersin good faith

Common Law

Act in interest of company as a whole

Not in interest of particular member

Must not abuse power

Personally liable for loss resulting from negligent behaviour

Must account for profits secretly derived from position as director

Fiduciary Position – place interests of company ahead of their own interests


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Directors Duties – Owed to?Primary function – manage company on behalf of membersDuties in first instance:– To the company– Not to members, creditors or employees

Director may owe duty to members – if expressly undertakes obligations to them (fiduciary duties)Insolvent company – duty to creditorsObliged to have regard to interests of employees:– This duty cannot be enforced by employees– Owed to the company



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Breach of Duty – Liability - Offences

Civil Proceedings Criminal Proceedings Administrative Offences


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Breach of Duty - Liabilities

Companies Acts– Summary offences (less serious)– Indictable offences (more serious)

Court imposed penalties

In General

Example of others

Summary- €1,900- 12 Mths

Indictable-€12,700- 5 Yrs

Fraudulent Trading

-€63,000- 7 Yrs

Insider Dealing

-€254,000- 10 Yrs

Civil Penalties

Administrative Fines

Disqualification(up to 5 Yrs)

(High Court can extend)



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Illustrative Offences

Section 137 of CA 1990– criminal offence to knowingly carry on the business of a

company with intent to defraud creditors– punishable by up to 7 years imprisonment and a

significant fine

Section 138 CA 1990 – Civil liability for fraudulent trading courts may impose

liability without limitation for the debts of the company on a director in a winding up


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Illustrative Offences

Competition Act 2002 (as amended) Cartels– Up to 5 years’ prison – Fines – up to a maximum of the greater of €4m and

10% of turnover on conviction on indictment– Potential liability of manager/officer who consents to

transaction– Presumption of consent to transaction which may be

rebutted



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Illustrative OffencesHealth & Safety at Work– Technical Engineering and Tooling Services Case

An Employee died as a result of an accident at workBreach of health and safety legislationCompany directors given 1 year suspended prison sentences

– Kildownet Utilities LimitedDeath of an employee/contractor on a construction site Companies fined a total of €250,000Directors of the Company found guilty of “reckless endangerment”Directors sentenced to two years imprisonment with the sentence suspended


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Minimising the Risks

Directors are best placed to ensure compliance with local law and assess risksImplement appropriate corporate governance procedures to identify and avoid risksHave a suitable board composition (Eversheds Board Report)Ensure each person understands their role, duties and responsibilities (training and compliance)Act early




Germany

Dr. Alexander Niethammer


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Statutory “general” and “other” duties

General Duties

Management of thecompany

and pursuit of the purposeof the company

Fiduciary duties

Maintenance of capital

Early Warning System

General Duties



Fiduciary duties



General Duties



Fiduciary duties



General Duties



Fiduciary duties



Necessary applications

to commercialregister

Confidentialityobligation

Non-competitionclause

Entrepreneurialdecisions to betaken correctly

Exercise of reasonable care,

skill anddiligence

No paymentsafter illiquidity

or over-indebtedness

Obligation to fileA petition for

insolvency

Obligations fromshareholders‘

assembly

Followshareholders‘instructions

OtherImportant

Duties

Necessary applications

to commercialregister

Confidentialityobligation

Non-competitionclause

Entrepreneurialdecisions to betaken correctly

Exercise of reasonable care,

skill anddiligence

No paymentsafter illiquidity

or over-indebtedness

Obligation to fileA petition for

insolvency

Obligations fromshareholders‘

assembly

Followshareholders‘instructions

OtherImportant

Duties



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Directors’ general duties

Early Warning system– An early warning system has to be implemented, Sec. 91

(2) Stock Corporation Act; details of the risk management depend on the content and extent of the respective company

Duty to control and manage risksDelegation of duties/responsibilities between directors is possible

– Introduction of Compliance System – so far no specific rules with regard to content; minimises personal liability risk of directors


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Directors’ other dutiesDuty of reasonable care, skill and diligence– Director’s actions need to be carried out with the diligence of a

reasonable business man, which means he has to act by using:the general knowledge, skill and experience of someone doing thesame job (objective);the knowledge, skill and experience that the director actually has (subjective).

– Make use of specialists’ help!– Experienced directors have to be aware of subjective standard– Inexperienced directors have to be aware of objective standard



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Directors’ other duties

Entrepreneurial decisions have to be taken correctly– Entrepreneurial decisions are based on a prognosis, so

that there is always a certain risk involved which may result in a director’s liability

– Business judgement rule appliesWide tolerance regarding director’s decisionDirector’s discretion cannot be revised by courts

BUT: Decision must be an “informed decision"!


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Different types of liability

Civil liability towards the company (internal liability)– D&O: deductible of 10% of damages; max. 1½ of annual salary (only

for stock corporations) – Advisory board of stock corporations is obligated to claim damages from

directors

Liability towards third parties (external liability)– Based mainly on tort law; very few cases

Criminal Liability– Up to € 1 Mio fine for breach of duties to supervise in case of criminal

acts by employees – Siemens Cases – holding illicit accounts alone is a criminal act



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Suggestions for a prudent future

Regular board meetings /

clear agenda�

Monitor delegatedtasks�

Clear minutes / record debate

�

Adopt performance measurements

�

Adopt“whistleblowing”

policies�

Crisis management

plan�

Delegate responsibility

for high risk areas�

Expect theunexpected!

�

Identify relevantrisk areas

�

Understand thebusiness

�Review

insurances�

Know your Compliance risks

�

Ask questions / challenge

�The Board

Effective boardStructure

�



France

Eric KnaiEversheds LLP



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Definition of « Director »

In France, president, managing directors, board membersVaries depending on company structure: In a simplified company (société par actions simplifiée):– the president (président), and– the managing director(s) (directeur général) if any.

In a limited liability company (société anonyme):– the CEO (président directeur général),– the managing director(s) (directeur général) if any, and– the board members (administrateurs, membres du

directoire)


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What are the Directors Duties ?

Duty of due diligence - Directors must carry out their duties with due care and in compliance with applicable laws and company by-laws;Duty of loyalty- Directors must always act in the interests of the company and must not compete with the company;Directors must conduct business with the company on an arm’s length basis;Director’s must manage the company in pursuit of the company’s objects; andDirectors must read and analyze information provided and ask for further information if needed and take necessary actions.



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How must Directors act?

Compliance with directors’ duties in the management of the companyIn France, the directors’ duties and liabilities in respect of the management of the company vary depending on the company structure:– Shareholder meetings– Annual Accounts– Minutes– Insolvency


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Directors’ Liability

Civil LiabilityCriminal LiabilityMinimizing the Risks



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Civil liability vis-à-vis the company and the shareholder(s)

A director’s civil liability may be triggered notably when he is negligent in the management of the company (faute de gestion).Civil liability where:– he/she breaches the law (i.e. under capitalization of the

company at the time of its incorporation, or non approval of the account at the end of each financial year), or the articlesof association (misuse of powers and votes, misuse of corporate assets), or even if he/she is negligent in the management of the company (faute de gestion), and

– this breach or negligence results in a damage.


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Civil liability vis-à-vis third parties

A third party may seek to hold a director civilly liable based on the French Civil Code (article 1382).Should a third party want to trigger his civil liability, the director(s) must have committed a fault that:– can be separated from their duties (faute séparable); – is intentional, gross and out of the scope of the normal

performance of the corporate management (Cass. com. 28 September 2010), and

– results in a damage.



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Criminal liabilityAs the representative of the company, the director(s) may be criminally liable for various offences.The instruction of the Ministry of justice dated 13 February 2006 distinguishes between intentional (i.e. forgery, misuse of the corporate assets) and non intentional (i.e. negligence, carelessness) offences, and requires that:– the company only is sued (and not the director(s)/delegated

persons) when the offence is not intentional; and– both the company and the director(s)/delegated persons may be

sued when the offence is intentional.

This position of the Ministry of Justice is reflected through practice in French case law. e.g. Molex case.


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Minimizing the risks

Powers of attorney and D&O insurances– D&O insurance: a means of limiting the consequences of

civil liability exposure.– Power of attorney: a means of limiting the criminal

liability exposure of directors. In order for such delegation of powers to be valid, the delegated officer must have the skills, authority and resources required to ensure compliance with applicable laws (Cass. crim. 29 May 1990).



Board of DirectorsGeneral Duties and Responsibilities

Italy

Daniela MurerEversheds LLP


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(A) Directors’ general duties

This presentation covers the obligations and duties of Directors of corporate entities (società per azioni -s.p.a and Società a responsabilità limitata –s.r.l.)Directors duties are mainly owed to the company The Directors must perform their duties with the diligence required by the nature of the appointmentSource of the duties are: Statutory Laws; Italian Civil Code; By-Laws; Case Law



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“General” duties of a Director

Confidentiality& other duties

Avoid conflicts

Non-competitionobligation

Fiduciary duties

Dutiesregarding

shareholders’assembly

Bookkeping

Application

Informationand

prevention

Pursuitcompany’s

purpose

GeneralDuties

Management of the

company

AnnualFinancialsStatement


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Management of the company and pursuit of the company’s purpose

estimate likely long term

consequences

valuate the impact of

operations on community & environment

consider interests of employees

desire to maintain reputation for high

standards of business conduct

foster business relationships with

customers, suppliers and others

act fairly with members

In managing the company a Director

mustAugment the value

of the company



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Act in an informed manner and prevent detrimental actions– A Director must act in an informed manner. – Duty of the Managing Director to regularly inform the

other Directors – Duty of each Director to ask for information or

explanation in case of doubts on the correctness and accuracy of the information provided by the Managing Director.

– Ignorance or lack of knowledge is not an exemption!


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Directors’ general dutiesFiduciary duties and exercise of reasonable care, skill and diligence– Decide and act in the light of the benefit of the company– Accomplish legal and contractual duties with the diligence

required by the nature of the tasks and the specific skills of the Director

– Liability for lack of controls on the behaviour of the other Directors or failure to prevent or reduce the negative effects of detrimental actions.

– Main consequences of fiduciary duty: obligation not to competeobligation to avoid conflicts of interest



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Directors’ general dutiesApplication - filing to Companies’ Registrar– All the applications to the Companies’ Registrar have to be

done by the Director/s of a company in due form and with due powers of representation. The registration with Company’s Registrar is for publicity purposes:

Filing of applications with the Companies’ Registrar (registration of the company, registration of the appointments of Directors, changes of seat/ articles of association/ liquidation processes etc.)Appointment of Directors

– Please note that Directors obtain full power and responsibility immediately upon appointment


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Directors’ general dutiesDraft the Annual Financials Statement of the company and related documents– Drafting of the Annual Financial Statement and the

management report– Presentation of the Financial Statement and of the

management report to the board of auditors or to the external auditor

– Filing with Companies’ Registrar of the Financial Statement approved by the shareholders along with the management report, the report of the auditors and the minutes of the shareholders’ assembly approving the Financial Statement.



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Directors’ general dutiesObligations regarding the shareholders’ assembly such as convene the assembly when required by the law– Duty to convene the shareholders’ assembly:

for the annual approval of the Financial Statement;the majority of the Directors fails;the board of auditors is not full force even with the presence of the temporary auditors (or when all the auditors fail);losses cause a decrease in the capital for an amount higher than a third (no reduction of the company’s capital beyond the amount required by law);losses of more than a third of the company’s capital cause a reduction of the company’s capital beyond the amount required by law;an event that causes the liquidation of the company occurs;purchase by the company of its own shares in breach of legal restrictions;the shareholders representing at least the ten percent of the capital of the company request the Directors to convene the shareholders’ assembly (the by-law may provide for a lower percentage).


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Other “general” duties– A) Verify the estimate of the contributions– B) Follow Shareholders’ Instructions– C) File a Petition for Insolvency – D) Confidentiality Obligation



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Suggestions for a prudent future

Regular board meetings /

convene meetings�

Monitor delegatedtasks�

Clear minutes / record debate

�

Adopt performance measurements

�

Adopt“whistleblowing”

policies�

Crisis management

plan�

Delegate for high risk areas

�

Expect theunexpected!

�

Identify relevantrisk areas

�

Understand thebusiness

�Review

insurances�

Know your Compliance risks

H&SD.Lgs 231/2001

�

Ask questions / challenge

�The Board

Effective boardStructure

�


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(B) Responsibilities

If the Director breaches any of his duties or the above-mentioned obligations, he or she will be liable for the breach of these dutiesIn some cases, the Director may also be subject to criminal prosecution (fraudulent bankruptcy; false social communications;prevention control in detriment of the shareholders for eg by hiding documents, obstructing the control allowed by the law to shareholders, auditors; illicit distribution of dividends or reserves, etc.)

Note that all the members of the Board of Directors are jointly and severely liable vis-à-vis the company, the shareholders and third parties for breach of their duties.



45

Breach of dutiesA breach of duty could lead to compensation for damages– Contractual liability– In tort liability – Criminal liability All the above can lead to: – Injunctive relief– Damages/compensation– Restoration of company’s property

Note: Attention to other sources of liability to be considered: for egtowards third parties, tax authorities, in connection with insolvency


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Minimize the risks – some suggestions

D&O Insurance: Personal cover for directors and officers for losses resulting from claims made against them (by third parties or the company)– Policies should be checked and underwriters requested

to confirm cover: does the policy cover, for example, criminal fines and regulatory penalties?

Health and SafetyCompliance to Decree 231/2001



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Italian Health & Safety RegimeDECREE 81/2008: among other duties:– a) evaluate risks for health and safety– b) put in place a prevention system planning– c) remove the risks or minimize them– d) minimize the number of employees exposed to danger – e) inform and train properly and adequately the employees, managers

and individuals in a position of command and with initiative powers– f) plan in advance the measures for improving the safety standards

Function delegation– The employer is responsible for safety; he/she can delegate his/her

H&S obligations to others if and when delegation is not explicitly prohibited.


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Italian legislative decree 231/2001

Decree 231/2001 has introduced a regulatory framework for administrative/criminal liability of companies in case of large number of crimes committed, in Italy or abroad, in the interest or to the benefit of the company, by its directors and/or employees.In the event of a criminal offence committed by such individuals, a trial against the individual directly will take place - who shall be punished according to the Italian Criminal Code - as well as against the company itself (represented, before the Criminal Court, by its legal representative).




United Arab Emirates

Dawn SandersonEversheds LLP


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Directors Duties

Listed and non listed entitiesOnshore/Offshore entitiesGeneral duties of directorsPenaltiesPersonal LiabilityReal Risk



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Directors DutiesWhere are the duties set out?– Onshore and Offshore

The company’s constitutional documents

– OnshoreThe UAE Companies Law (No. 8 of 1984 as amendedThe Penal CodeThe Commercial CodeThe Civil CodeFor public joint stock companies listed on the DFM or ADX – Ministerial Resolution No. 518 of 2009 of ESCA concerning corporate governance and corporate discipline standards

– OffshoreFree Zone Regulations


52

Directors Duties

The Companies Law– There are a number of general duties and responsibilities

applicable to directors and officers of companies in the UAE.– According to the Companies law, those persons who are

responsible for the management of the company can be liable to the company and its shareholders and third parties for all acts of fraud, abuse of power, violation of the companies law and “mismanagement” (Article 111 of the Companies Law).

– The law is fairly prescriptive and requires directors to refrain from engaging in certain types of behaviour.



53

Directors DutiesMain duties under the law in the UAE– A duty to act honestly;– A duty to act in accordance with the law and within the directors powers;– A duty not to abuse the powers of a director;– A duty to keep confidential, and not benefit from, the company’s secrets;– A duty to exercise a degree of care and judgement in the performance of a

director’s role; – A duty to avoid conflicts of interest;– A duty to act in the best interests of the company and the shareholders;– A duty not to compete with the company’s business;– A duty not to distribute fictitious dividends;– A duty not to enter into loan arrangements with the company (director loans);

and– A duty not to misrepresent the company’s financial position.


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Directors DutiesPenalties– Directors may be liable to a fine (of up to AED 100,000)

or imprisonment where they:Sign documents containing false information on behalf of the company;Knowingly insert false information into company documents and then sign or circulate them;Disclose or use of the company’s confidential information in any way for the director’s own benefit or a third party’s benefit; orIntentionally omit material facts or insert false details in a company’s balance sheet or profit or loss statement with the intent to conceal the true financial position of the company.



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Directors Duties

Penalties, continued…– Under the Penal Code directors may be criminally liable for:

embezzlement of company right or property;fraud;disclosure of confidential information for personal gain; and writing a cheque on the company’s behalf where the company cannot meet payment.

– A director can also be disqualified for a breach of duty. – Ability of a company (in its own name or on behalf of the

shareholder) or its shareholders individually to pursue a director or manager for mismanagement.


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Directors Duties

Directors personal liability, continued...– Personal liability to a third party - where a contract is

executed by the director without proper authorisation by the company.

– Third party would have a personal claim against the manager who acted ultra vires.

– Third parties usually ask for a specific power of attorney before entering into a transaction with a UAE company.



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Directors Duties

Joint Liability– Directors of the company jointly liable for the actions

of the company in the event of a default arising from a board decision.

– Only exception to this rule is for directors in attendance and who voted against the resolution (Article 112), and whose objections is stated in the minutes of the meeting, who do not bear joint liability for the act.

– May be possible for some of the responsibilities of board to be delegated to smaller committees of directors or individuals.


58

Directors DutiesReal risk– Directors need to be aware, possibility an investor or third party (who

loses money as a result of the directors’ actions) may report the matter to the police and public prosecutor, in addition to looking for civil redress.

– Any breach of the Companies Law is a criminal offence - director is, at a minimum, liable to a fine.

– Certain offences under Companies Law and other legislation may result in imprisonment for a director.

– Primary civil remedy against directors for a breach of their duties and responsibilities is damages.

– Difficult to get an injunction from a UAE court, therefore, not usually an option.



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Public Joint Stock CompaniesMinisterial Resolution 518 of 2009– Additional requirements for listed companies on DFM and ADX.– Includes new provisions in relation to board structure, directors duties,

board committees, internal control, external auditors and governance reporting.

– Requirements for directors to “act honestly and loyally, taking into consideration the interests of the company and its shareholders, make the utmost effort and adhere to applicable laws, regulations andresolutions as well as the articles of association and internal regulations of the company.”

– There are also particular duties in relation to non-executive board members including the duty to participate in board meetings to give an independent opinion.


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Protections

There are a number of ways in which directors can protect themselves from claims against them:– indemnity;– D&O insurance; and– ratification.

Indemnification and insurance policies are not common in the UAE due to the limited number of claims against directors in the UAE but they are becoming more popular following the GFC and an increase in claims.



Case Study


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Thyssenkrupp Case : criminal liability of the CEOOn 15 April 2011 the Criminal court of Turin found the CEO of the Italian division of Thyssenkrupp guilty with voluntary multiple murder with eventual malice for the death of 7 steal workers occurred in the Turin plant in 2007. He was sentenced to sixteen and a half years in jail and to a life-long ban from holding public offices. Five other managers and executives have been charged and found guilty with "culpable murder with conscious guilt". All have been also charged with "malicious omission of safety measuresThis decision is the first of its kind (and is subject to appeals): it is the first time a court finds a director guilty of voluntary multiple murder with eventual malice as usually these cases were charged as negligent crimes, i.e. non voluntary. The decision found the CEO guilty based on the principle that director accepted the possible consequence (risk) of lack of compliance with H&S regulation could cause fatal accident butdecided to apply the “the logic of corporate economic savings” instead of safetyFurther, the company itself was condemned under decree 231/01 - regulatory framework for administrative/criminal liability of companies in the event a given list of crimes are committed, in Italy or abroad, in the interest or to the benefit of the company, by its Directors and/or employees. Among these crimes there are: bribery, corporate crimes, criminal offences related to financial aid, loans, grants, from public institutions, frauds, market abuse, insider trading, money laundering, forgery, crimes related to terrorism, IP crimes, crimes against individuals, computer and IT crimes, crimes related to privacy, crimes related to Health and Safety, and others) In this case the benefit of the company was found by the Court in the savings that the company made by not complying with H&S regulation. The company could have mitigated the risk if it had in place, among other requirements, a compliance/organizational model aimed at preventing 231 crimes a surveillance body and an ethical code. The sanctions applied were a pecuniary sanction, six months of exclusion from public funding, restriction from advertising its products




U.S. Perspectives

Kevin D. MakowskiFoley & Lardner LLP


64

U.S. Perspectives

The Challenge– Manage director duty/compliance issues efficiently while

accommodating local requirements

Insolvency– Potential duties to creditors (instead of parent company)– Requires focus on preserving assets vs. turning around

business



65

Home Office Conflicts– Examples > transmission of data regarding employees or

not implementing a safety recall– Duties owed to company NOT shareholder


66

Extraterritorial Reach of U.S. Laws– Antitrust, FCPA and export control laws all enforced for

conduct occurring outside the U.S.– U.S. persons and heavily integrated structures most at

risk



67

Potential Approaches– Robust corporate compliance and ethics policy– Allow for flexibility and need to prioritize compliance with

local requirements– Basic training of directors to be able to spot issues– Allow for directors to consult with legal counsel if needed


68

Potential Approaches Continued –– Instill corporate culture that recognizes the fundamental

need of valued employees to prioritize compliance with local requirements

– Investigate and implement indemnification, insurance, etc. as appropriate



Closing Comments


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Contact InformationRobin JohnsonEversheds LLP+44 113 200 4860 [email protected]

Tony McGovernEversheds LLP +353 1 6644 [email protected]

Sean RyanEversheds LLP+353 1 6644 [email protected]

Alexander NiethammerEversheds LLP +49 89 545 65 [email protected]



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Contact InformationEric KnaiEversheds LLP+33 1 55 73 41 [email protected]

Daniela MurerEversheds LLP+39 02 89 28 [email protected]

Dawn SandersonEversheds LLP+00 971 2 [email protected]

Kevin D. MakowskiFoley & Lardner [email protected]


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Mark Your CalendarWe hope that you will join us for the remaining sessions of the NDI Checkpoint Web Conference Series.– August 17, 2011: Online Privacy Issues– September 20, 2011: Director and CEO Performance Review– December 7, 2011: 2012 Proxy Season Preview

Save the Date! NDI Executive Exchange

– November 17, 2011 — Chicago, IL — Invitation-only



73

Thank You

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Director and Corporate Secretary Duties in Foreign Countries...Director and Corporate Secretary Duties in Foreign Countries July 20, 2011 ©2011 Foley & Lardner LLP 2 Today’s Presenters