When should we put a share agreement in place?

Usually, it is best to put a shareholders’ agreement in place when you form the company and issue the first shares. In fact, it can be a positive exercise to ensure there is common understanding of shareholders’ expectations of the business.

At that point, the shareholders should, as far as is possible, be of a similar mind about what they expect to offer and get from the company. Indeed if the differences of opinion between you at this stage are too strong to form a shareholders’ agreement, it is likely to ring warning bells about the nature of your future working relationship.

When should we put a share agreement in place?

You may choose to defer discussing a shareholders’ agreement in order to get on with the important task of establishing the business. While you may have every intention of return to it at a later date when there is more time, the appropriate opportunity may not arise and something else always takes priority.

Even if you do pick it up later, by then the shareholders’ expectations and feelings towards the business may have diverged, making it more difficult for them to agree to the terms that should be included in the shareholders’ agreement.

What should I ask to be included in a shareholders’ agreement?

This, as described above, will depend on your level of shareholding and the number of your fellow shareholders.  The key provisions, however, that you should consider including in a shareholders’ agreement are those relating to:

• Issuing and transferring shares – including provisions to prevent unwanted third parties acquiring shares and how a shareholder can sell shares.
• Providing some protection to holders of less than 50% of the shares – including requiring certain decisions to be agreed by all shareholders.
• Running the company – including appointing, removing and paying directors, deciding on the company’s business, making large capital outlays, providing management information to shareholders, banking arrangements and financing the company.
• Paying dividends
• Competition restrictions
• Dispute resolution procedures

We will look at these and other things you might want to include in a shareholders’ agreement in a forthcoming article.

It is possible that the contents of the shareholders’ agreement may overlap with other company documents, particularly the articles of association. The articles will, for example, contain provisions relating to decision making and transfers of shares and in another article we explored what investors should look for in a company’s articles of association.

Consider seeking legal advice if you are not sure which provisions to include in which documents, but overall do ensure that the shareholders’ agreement and articles of association are consistent with one another.

To find out more, feel free to request a free of charge call back from our website or click here and we will contact you by return.

What is a shareholders’ agreement?

A shareholders’ agreement is, as you might expect, an agreement between the shareholders of a company.
It can be between all or, in some cases, only some of the shareholders (like, for instance, the holders of a particular class of share).

Its purpose is to protect the shareholders’ investment in the company, to establish a fair relationship between the shareholders and govern how the company is run.

A shareholders’ agreement will:

• Set out the shareholders’ rights and obligations
• Regulate the sale of shares in the company
• Describe how the company is going to be run
• Provide an element of protection for minority shareholders and the company
• Define how important decisions are to be made

The shareholders’ agreement will contain specific, important and practical rules relating to the company and the relationship between the shareholders.

How will a shareholders’ agreement help me if I am a minority shareholder?

Without a shareholders’ agreement, a minority shareholder (one owning less than 50% of the shares) will on their own have little control or say in the running of the company. Indeed, the control will often rest with one or two shareholders.

Companies are generally run by majority decision and even if the articles of association include provisions that protect the minority, these can be changed via special resolution by holders of 75% of the shares.  There are laws that provide limited protection to minority shareholders but these can be costly to enforce and may not achieve the required redress.

Protecting your rights as a minority shareholder

Being a minority shareholder and having a shareholders’ agreement that includes the requirement for all shareholders to approve certain decisions ensures that you have a say in the important decisions that impact the company.

This could be decisions on the issue of new shares, appointment or removal of directors, taking on new borrowings or changing the main trade.  However, if the shareholders’ agreement requires all decision to be unanimous this could cause problems and ultimately prevent your company carrying out its business.

As a minority shareholder, you may want a provision included that if someone is willing to buy the shares of a majority shareholder, that shareholder can only sell the shares if the same offer is made to all shareholders including you as a minority shareholder. This is often referred to as a “tag along” provision. This should then ensure that you receive the same return on your investment as the other shareholders.

How will a shareholders’ agreement help a majority shareholder?

If, as the majority shareholder, you want to sell your shares but a minority shareholder is unwilling to agree then including a provision forcing that shareholder to sell their shares is important.

This is often referred to as a “drag along” provision.  This will then allow you to realise your investment at a time and price that you feel is appropriate.  Obviously the price and other payments for the sale will need to be fair for all shareholders, including the minority shareholders.

In addition you would want to prevent minority shareholders passing on confidential company information to competitors or setting up rival businesses, each of which can be included as a provision within a shareholders’ agreement.

Another concern is where one of your fellow shareholders could transfer their shares to anyone.  This could cause problems for you and the other shareholders, especially if the sale is to a competitor or someone else you do not want involved with the company.

Conversely, however, to force an unhappy shareholder to stay may cause more problems than having a new unknown shareholder who is interested in the company being successful.  You and your fellow shareholders need to get on with each other for the business to thrive.  To overcome these problems, shareholders’ agreements will often include rules around share sales and transfers – who shares can be transferred to, on what terms and at what price.

In our blog tomorrow, we will discuss when the best time is to put a share agreement in place. In the meantime, if you have any queries or would like to discuss your situation in more detail, request a free of charge call back from our website or click here and we will contact you by return.

Do you need a shareholder agreement?

When setting up a company with family or friends it is easy to assume that nothing can go wrong in the future.

You might assume that - as you trust one another - you do not need to put in place something like a shareholders’ agreement. 

In fact, you might think that asking for a shareholders’ agreement will make it sound like you don’t trust or respect your new business partners.

Hopefully, nothing will go wrong in the future – after all, nobody sets out expecting it to! However, even family members and best friends fall out and, unforeseen circumstances can occur.

If the worst should happen, you could then end up with nothing. Or you might face the breakdown of a friendship alongside a costly and acrimonious legal dispute related to the business.

Why do you need a shareholders’ agreement?

Although the company’s articles of association will help to some extent, a fully considered and well drafted shareholders’ agreement can act as a safeguard and give you and your fellow shareholders more protection against these types of scenario.

Although some people with a shareholders’ agreement will never need to rely on its terms, there will be many more cases where shareholders wish they had taken the time to put a proper agreement in place.

If you are going into business with others and are looking for confidence about your future relationships with them, you should carefully consider putting a shareholders’ agreement in place to protect both the business enterprise and your own investment in the company.

Our next blog will explain what a shareholder agreement is – in the meantime, if you have any queries or would like to discuss your situation in more detail, request a free of charge call back from our website or click here and we will contact you by return.