Port of Tauranga and consortium partners acquisition of Marsden Maritime Holdings

When a company director signs an agreement on behalf of a company they may also be required to sign a personal guarantee, this means they are accepting personal liability for the obligations of the company. Personal guarantees are common in several types of agreements, for example leases, supply/trade agreements, or loans. They provide additional security for lenders, allowing lenders to bypass a company when there is a breach of the agreement and look to the assets of the guarantor. However, in certain circumstances a personal guarantee may not be enforceable, including when a director has only signed an agreement once, in their capacity as a company director, and not in a “dual” capacity. Where there is only one signature on an agreement, there is a presumption that a person who signs once is signing as an agent of the company – and not in their personal capacity. To hold that person liable as a guarantor, it must be shown that the person signed in a dual capacity: this means that they signed on behalf of the company and in their personal capacity. Factors in Determining Dual Capacity 1. Whether a person has signed an agreement in a dual capacity is circumstantial, however there are factors that assist with determining whether a person has signed in a dual capacity. These include: The structure of an agreement is an indicator of whether a director has signed in a dual capacity. Typically where there is a guarantee, an agreement will identify the contract’s parties – which will include the lender, the company (for example as borrower/principal debtor) and the guarantor. If the guarantor is not a listed party to the agreement this may indicate that the director did not sign in a dual capacity and is therefore not bound by any personal guarantee clauses within the agreement. The description of the signatory is another factor – however, this is not a straightforward indication as to whether a person has signed in a dual capacity.  If the person is listed merely as a “Director,” this typically suggests the signature was made only on behalf of the company. That said, context is important, and “Director” may also be used to describe someone who happens to be bound as a guarantor. The wording of the clause is also a key indication as to whether the guarantee is effective. If the clause includes clear acknowledgements by the guarantor, for example, inserting their name in the clause and/or an express acknowledgement that by signing the agreement they are accepting personal liability as a guarantor, can support enforcement. A guarantee clause may reference a separate document. Overall, the clauses should be read carefully as they may merely be an agreement to obtain the personal guarantee in the future in a separate document. While potentially more difficult to prove, evidence that the personal guarantee clause was explained to the individual prior to signing can support the argument that the individual understood and accepted the dual role. Oral or written statements may be used to demonstrate this, however the main issue with this comes down to evidence. 2. Whether a director has signed in a dual capacity can be a complex issue when there is not a separate signature section. These sorts of issues are unlikely to arise in modern agreements, but may still arise in older ongoing agreements where there is less clarity. Clarity is Key Determining whether a personal guarantee is enforceable when there is only one signature is a fact specific exercise – the language of the clause, the entire agreement and the circumstances need to be considered. A personal guarantee clause may be insufficient on its own to make a director or shareholder personally liable for company debts. For such a clause to be enforceable against an individual, the individual should sign the agreement twice (once in their capacity as director of the company and again in their capacity as a personal guarantor) or the agreement should be clear that an individual has signed in a dual capacity. To avoid any issues, clarity is key. Agreements should be clear when a director or shareholder is committing themselves personally, not just on behalf of the company.

Our corporate and finance team is proud to have advised local robotics company and long-time client Robotics Plus through its recent acquisition by Japan’s Yamaha Motor Company. Partner Ken Hawkes has worked with Robotics Plus founders Steven Saunders and Dr Alistair Scarfe for over 10 years through their journey of development and innovation, to this major milestone. Robotics Plus is a true local success story. The Tauranga based company develops and produces robot vehicles to improve orchard efficiencies, such as the flagship ‘Prospr multi-use autonomous vehicle’. Identifying a need for such products in the horticulture industry early on, the company has grown from strength to strength, with the acquisition by Yamaha Motor Company paving the way for further international expansion and the scaling up of manufacturing. Holland Beckett’s corporate and finance team advised Robotics Plus on the acquisition supported by the employment and commercial teams. Read The New Zealand Herald article here: Yamaha buys Tauranga’s Robotics Plus, unveils big plans Read Robotics Plus release here: Robotics Plus acquisition by Yamaha Motor to enable precision agriculture for growers

Recent high profile prosecutions under the Health & Safety at Work Act (HSWA) have highlighted limitations of standard insurance cover for corporate directors and officers. Specifically, where criminal prosecutions may result in extensive defence costs for targeted directors or officers.  Typical directors and officers (D&O) insurance will not cover defence costs where the prosecution is based on criminal liability, such as sections 48 and 49 of the HSWA, in the absence of acquittal. What D&O insurance is and what it typically covers New Zealand law places a high standard on a company’s decision makers, i.e.,  its board of directors and senior executives.  A company will typically place D&O insurance to mitigate the risk for such persons.  This covers a range of liabilities and includes compensation for legal claims and defence costs when acting in a governance or senior role. Companies can place D&O insurance for their directors and employees.  However, a company may only effect the insurance if its constitution expressly authorises it (see s 162 of the Companies Act). D&O insurance can include where a person is charged with a breach of director’s duties or an infringement of the Resource Management Act (RMA).  However, this insurance does not, and lawfully cannot, cover all liabilities. Gaps in cover and criminal liability A company cannot effect D&O insurance to cover defence costs where there is criminal liability if the insured is not acquitted.  This is explicit at s 162 of the Companies Act.  Absent other measures, this can leave a defendant  funding their own defence in relation to liability under the HSWA or the RMA. However, a director or employee may place their own insurance personally for defence costs in relation to criminal liability (which includes liability for collusion under the Commerce Act, offences under the RMA and offences under the HSWA).  Taking out personal defence cost cover is worth considering as many of these offences have strict liability, meaning, you can still be found liable for an accidental breach. If you are a director or executive employee of a company with exposure to liability under the RMA, HSWA, Commerce Act or any other statutes that have criminal liability, it might be a good time to consider personal cover.  Or, if you already have D&O insurance, reviewing what you are covered for already. If you would like to discuss anything in relation to D&O insurance, including understanding what your policy says or what cover you might want to consider, contact our Corporate and Finance team.