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Need to remove a director acting weird in our company he is also a 50% shareholder,can I call a special shareholder...

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need to remove a director...
need to remove a director acting weird in our company he is also a 50% shareholder,can I call a special shareholder meeting to do that? if this shareholder does not show up at this meeting ,can I vote a resolution without him to do that with my 50%,if yes what should I do to be sure that this resolution is completely lawful ,this is a Delaware C corP.
thanks,
Remy
Submitted: 1 year ago.Category: Business Law
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6/6/2016
Business Lawyer: CalAttorney2, Attorney replied 1 year ago
CalAttorney2
CalAttorney2, Attorney
Category: Business Law
Satisfied Customers: 10,244
Experience: I am a businesses law attorney, with experience advising and representing owners and investors.
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Dear Customer,

Here is the relevant DE Corp. Code section:

  • (k) Any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except as follows:

    (1) Unless the certificate of incorporation otherwise provides, in the case of a corporation whose board is classified as provided in subsection (d) of this section, stockholders may effect such removal only for cause; or

    (2) In the case of a corporation having cumulative voting, if less than the entire board is to be removed, no director may be removed without cause if the votes cast against such director's removal would be sufficient to elect such director if then cumulatively voted at an election of the entire board of directors, or, if there be classes of directors, at an election of the class of directors of which such director is a part.

    Whenever the holders of any class or series are entitled to elect 1 or more directors by the certificate of incorporation, this subsection shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.

http://delcode.delaware.gov/title8/c001/sc04/

You can try doing this with a special meeting (see: http://delcode.delaware.gov/title8/c001/sc07/, but the 50% shareholder/director is entitled to appropriate notice, and if they are ousted, they are entitled to make a judicial challenge of this process).

I would strongly recommend that you retain legal counsel to assist you with this matter (this probably isn't going to be covered by the corporation, since 1/2 of it belongs to the individual that you are trying to remove).

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