Sale of Shares – Control of Transfer
The sale of company shares can occur for various reasons (business exit strategy, disciplinary issues, realisation of investments for cash-flow purposes). To prevent potentially undesirable third parties from acquiring shares in the company, a mechanism can be included in the agreement to handle the sale of shares in situations such as:
- a shareholder wanting to dispose of shares and gain return on their investment;
- the death, illness or bankruptcy of a shareholder; and
- a proposed sale of the entire company, where not all shareholders are in agreement.
A usual provision would be the inclusion of ‘pre-emption rights’ for the existing shareholders over the shares of their outgoing co-members, i.e. a right of first refusal. There may also be so-called “drag-along” and “tag- along” rights, which empower majority shareholders to force the other shareholders to sell their shares to third party buyers, or minority shareholders to force their entitlement to sell when shares are being sold by a majority shareholder in order that the whole company can be sold as one transaction.
Director Responsibilities
Shareholders’ Agreements can be used to clarify who makes decisions within a company and to determine the power held by the shareholder or director.
The roles of director and shareholder within a company can be carried out by a single person. However in order to avoid the potential issues that arise where there is a conflict of interest, a Shareholders’ Agreement can be used to establish which decisions can be made by directors without the input of the shareholders, in order to make a clear distinction between the roles.
Directors may have other jobs, directorships or external commitments to those of the Company. Accordingly, the Shareholders’ Agreement, (drafted alongside the director’s service agreement or contract of employment), can oblige each shareholder who is a director to devote an agreed amount of time to the company.
Protection of the Company
Shareholders of a company are likely to gain knowledge of certain confidential information about the company which would otherwise remain private, such as information about customers and suppliers. In order to protect a company’s business interests, where a shareholder sells their shares, provisions can be included in a Shareholders’ Agreement to limit the potential damage to the company, some examples of which are:
- non-compete;
- non-poaching of customers; and
- non-solicitation of staff.
Protection of Minority Shareholders’ Rights and Investment
Veto Rights
The inclusion of these provisions protect shareholders who hold less than 50% of the shares in the company, by giving them more input into fundamental decisions. These minority shareholders usually have very little say in the business of the company if they are out-voted by the majority, so veto rights in a Shareholders’ Agreement are used to empower minority shareholders.
Unanimous and majority voting
Where certain decisions are crucial to the functioning of a business, it may be in the best interests of all the shareholders of a company, (but particularly the minority shareholders), to agree that a 90% or 100% majority of shareholders must agree to it (as opposed to the normal requirement for more than 50% or 75% of votes by way of ordinary or special resolution of shareholders respectively).
Examples of such decisions might include:
- business activity changes;
- approval of giving or receiving large loans;
- increasing or decreasing director pay;
- recruiting or dismissing directors; and
- issuing new company shares.
Notwithstanding the above, it should be noted that a requirement for unanimous or high percentage voting could cause practical difficulties to the company’s ability to effectively make decisions, and could end up causing the company to stagnate, so such voting requirements should be considered carefully.
How long will it take to complete, and how long will it last?
Once all of the shareholders have agreed on the content that they wish to be included in the Agreement, they simply need to sign the Agreement and date it. At that stage the agreement will be effective in binding all of the parties to it.
If you believe this type of agreement would be beneficial to you, please do not hesitate to contact us.
