Corporate Snapshot – Shareholders Agreements Checklist

Shareholders’ Agreements Checklist

  1. Nature of Company and Finance
  • What will be the nature of the activities carried on by the company?
  • Where will the business be based?
  • Will there be geographical limitations placed on the business’ operations?
  • Are there any circumstances in which further capital may be required?
  • If the company requires further finance, will the parties be required to provide such finance? If so, on what terms and what will happen if one of the parties defaults?
  • Should such further finance be provided by the shareholders in proportion to their original investment?
  • If in relation to any bank facility, the bank requires a guarantee from the shareholders, should all shareholders give such guarantee? If only some of the shareholders are to give a guarantee, will the other shareholders indemnify them?

 

  1. Directors of the Company
  • Who are the directors?
  • Do all shareholders have the right to appoint a director or is it only specified shareholders?
  • Who is to be the chairperson (or will this rotate)? Will the Chairperson have a casting vote?
  • Are all the directors required to be present at a board meeting or can resolutions be passed by a majority of those present? Care should be taken in requiring unanimity – it is better to have a list of matters that cannot be undertaken without consent of all or a given percentage rather than requiring unanimity at all meetings as this could fetter decision making/holding of meetings etc.
  • Is a director to be entitled to appoint a substitute or “alternate” director to take his place if he is absent or incapacitated? If so, does the alternate have to be someone approved by the board of directors?
  • What is the quorum for directors and shareholder meetings going to be?
  • Are service contracts required for the directors and are there particular individuals with key roles in the company calling for special treatment?
  • If directors are to enter into service contracts, which of the following protections are required in such contracts:
  • Confidentiality;
  • Restrictions after termination of the employment relationship with the company; and
  • Non-solicitation.

 

  1. Employees
  • Does the company have its own employees?
  • What (if any) share option or incentive schemes are proposed?
  • If any employee has shares in the company, does the company wish to build loyalty by requiring any such employee who ceases to be employed by the company within a specified period (such as two years) to sell the shares at the price paid for them or should such employee receive the market price for the shares?

 

  1. Matters requiring unanimous approval

Are there any matters that should require the unanimous approval of the directors or shareholders as opposed to majority approval or which should require approval of a specific director?

Consider the power of the company to do the following:

  • Borrow;
  • Take credit;
  • Create mortgages or charges;
  • Start litigation (other than debt collection);
  • Lend money;
  • Give a company guarantee;
  • Acquire or dispose of land or offices;
  • Change the nature of its business;
  • Wind up the company;
  • Issue, allot, redeem, purchase or grant options over its shares;
  • Pay dividends;
  • Change the constitution of the company;
  • Hire or fire staff;
  • Increase employees’ pay;
  • Terminate the employment of a director.

 

  1. Transfers of shares in the Company
  • Should a shareholder be entitled to transfer shares freely to his spouse, children, other relations, family trust or other shareholders, or even outside third-parties?
  • As an alternative to free transferability of shares, where a shareholder wishes to transfer shares should the shares proposed to be transferred first be offered to the other shareholders (i.e. should the articles contain “rights of pre-emption” on transfer)?
  • Are any other special terms appropriate, for example:
  • shotgun” or “Russian roulette” provisions, by which other shareholders can elect, where any shareholder wishes to transfer his shares to a third party, either to purchase all the transferring shareholder’s shares at the price specified by the transferring shareholder, or, require the transferring shareholder to acquire their shares at the price specified by the transferring shareholder; or
  • drag-along” provisions, by which the transferring shareholders of a specified percentage (normally 50% or 75%) can force the other shareholders to sell to a third party or “tag-along”, by which shareholders of a specified percentage (could be as low as 25%) can require a transferring shareholder to procure a potential third party buyer to acquire their shares in addition to his own? These provisions are important to consider in connection with third party potential buyers who are looking to purchase 100% of issued shares.
  • Should the transferee of any shares be made a party to the shareholders’ agreement as a condition of the transfer?
  1. Pre-emption Rights

If the Articles of Association of a company are to contain rights of pre-emption on transfer:

  • How is the value of the sale shares to be settled?
  • Should this be by the application of a formula established in advance or should the auditors in each particular case assess the “fair value”? Alternatively should the value be established by agreement and then determined by the auditors if agreement cannot be reached?
  • Should the treatment for the calculation of the value of the shares differ depending on the circumstances (e.g. should the treatment be different on a voluntary sale from a sale by the personal representatives in the case where a shareholder has died)?
  • Should the fact that the sale shares represent a majority or minority holding be reflected in their value or should you ignore any discount because the number of shares to be sold constitutes a minority shareholding?
  • Do sale shares have to be offered to the other shareholders in proportion to their shareholdings or in some other proportion?
  • If the shareholders do not take up their proportion of shares are the shares to be offered around again?
  • If sale shares are still not taken up should the directors be able to nominate an outsider to purchase the shares or to decide that the company should purchase / buy back the shares (subject to the company meeting all the requirements)?
  • If purchasers are found for some of the shares only and not all of them, does the shareholder who offered them for sale have to sell those shares taken up even if this may leave him/her with a minority holding or can he/she cancel the whole share process?
  • Can the selling shareholder sell to an outsider of his/her choice for a limited period if all of the shares are not taken up by the others (subject to the sale being on no more favourable terms than those offered to the other shareholders)?
  • Are there circumstances in which a shareholder must sell (e.g. death, bankruptcy, insanity or in the case of a shareholder who is an employee leaving the company for whatever reason)?
  1. Restrictions

You may also wish to consider whether the Shareholders’ Agreement should contain a clause preventing a shareholder, after he/she leaves the company from:

  • Competing with the company;
  • Approaching the company’s customers/suppliers/staff;
  • Using the company’s confidential information;
  • Using the company’s name or a similar name for another business.

If restraints are to be imposed we will need to consider the period and geographical extent of the restraints: the restraints should be no more extensive than necessary to protect the company’s legitimate business interests (ie they must be reasonable).

  1. Leavers

You will also have to decide how you will deal with any shareholder who wants to leave or, more importantly, you require to leave (i.e. you want to terminate their contract of employment):

  • Must one party sell his/her shares to the other(s)? And, if so, should the calculation of the value of the shares differ depending on the circumstances, i.e. should there be “good leaver”/bad leaver provisions where the amount to be paid to the exiting shareholder will be dependent upon the circumstances in which the individual leaves the company.
  • Being a “good leaver” could, for example, result in the value of the shares being the fair value as agreed between the parties or in default of agreement as certified by the auditors/accountants
  • Being a “bad leaver” (usually if the company has to terminate employment for a substantial reason) could result in provisions whereby the amount you pay for the exiting shareholder’s shares is either its nominal value or a sliding percentage of the fair value depending upon when the exit occurs.
  1. Disagreements

What is to happen if there is a fundamental disagreement between the parties?

  • Can one party be forced by the other(s) to leave and sell his/her shares?
  • Can one party put his shares onto the other party at a price he states but at risk that the other party puts his shares onto the initiating party at the same stated price?
  • How are the joint venture assets to be allocated in a buyout scenario? Are they allocated to the buyer in the buyout scenario or are any assets reserved for the seller?
  • Is the Agreement to remain silent in the hope that the matter can be dealt with when the disagreement arises?
  1. Miscellaneous matters for consideration
  • Is there to be a specified policy for distribution of profits by the payment of dividends?
  • If the company is owned 50/50 consider including deadlock provisions to enable a party to buy the other out at valuation in the event deadlock arises.
  • What happens to shares on death or if a shareholder is required to leave through incapacity or ill health. Consider insurance/options?
  • Do you require key man insurance for any individual(s)?

This checklist is not exhaustive and there may be other issues not mentioned here which may need to be incorporated within the Agreement. Need more advice? Call Guildford Solicitors rhw on 01483 302000 or email guildford@rhw.co.uk