A Shareholders’ Agreement is a private agreement between the shareholders of a company and, often the company itself, the contents of which are down to the shareholders’ to decide. The private nature of such an agreement means the shareholders are free to include anything they like in it, and it therefore often sets out exactly how shareholders intend to run their business.
The agreement typically contains instructions on how the company is run, and sets guidelines to follow upon the occurrence of certain events.
Whilst a company’s Articles of Association will contain a lot of the rules concerning the operation of the business at a corporate level, there are laws around what can and can’t be included in the Articles. A Shareholders’ Agreement therefore allows the shareholders greater freedom to create their own rules by which the company must operate, both now and in the future.
A company is obliged to file its Articles of Association at Companies House for all to see, whereas, as noted above, a shareholders’ agreement is private and personal to the shareholders.
The Agreement will contain specific and practical rules relating to the company and the relationship between the shareholders, examples of which are as follows:
The Shareholders’ Agreement can set out the operational scope of the business including the agreed geographical scope and market positioning and the mechanism by which any departure from the Company is managed.
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 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.
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.
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:
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.
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:
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.
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.
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