For limited companies, when it comes to making decisions,
company law states that shareholders who own more than 50% can pass a motion at
a company meeting regardless of the views of other shareholders. If a
shareholder(s) owns more than 75% of the shares, they control the company
outright and can veto the decisions of all other shareholders.
This may not suit all business situations, especially
where you have two or more founders holding equal share capital or a group of
owners with varying amounts of capital, some of whom are directors and some who
are not, but who are all working together for the company’s success.
A shareholders’ agreement is entered into between all or
some of the shareholders in a company. It regulates the relationship between
the shareholders and the management of the company, ownership of the shares and
the protection of the shareholders. They also govern the way in which the
company is run.
The agreement can help define how a business makes
decisions for the benefit of all owners, and is recommended where:
•
A small number of owners want to
reach collective and fair decisions for the benefit of all.
•
Some owners may want to be able to
influence decisions that are particularly relevant to them.
•
Some shareholders may not be
directors and cannot influence operations on a day-to-day basis.
Typically, it is seeking to deal with the three “D’s” of
death, disability and disagreement. It may also cover a variety of other
significant areas, for example, retirement and buyback of shares.
Key areas for any shareholder agreement
This is not a comprehensive list as each situation is different,
but it may help you collect the thoughts of all shareholders before you draw up
an agreement.
1. Company
details including structure, directors and officers
2. Purpose
and aims of the company
3. Equity
split of shareholders
4. Parties
to the agreement
5. Shareholders'
rights, obligations and commitments
6. Decision-making
processes on major issues, required voting majorities and day-to-day operating
decisions
7. Restrictions
on the sale of shares
8. Rights
of first refusal and pre-emptive rights to acquire shares on leaving,
retirement, death or disability
9. Death,
disability and other retirement compensation payments
10. Management
contracts, director approval and remuneration amounts
11. Insurance
and other protective requirements
12. Professional
advisers and change of professional advisers
13. Dispute
resolution
14. Changes
to and termination of the agreement
15. Buy
out provisions for leaving shareholders
16. Valuation
of shares on changes and valuations of the business
Our view is that a shareholders agreement is an essential
document for any limited company and an equitably drafted agreement should
provide comfort to all parties.
Please talk to us if you need help in planning for an
agreement, especially where there are several shareholders, a new company is
being formed, a shareholder wants to sell their shares or pass them to their
children, someone is nearing retirement, or the company has borrowed money from
a shareholder. We can help with share and company valuations and put the
shareholders' wishes into an agreement with a local solicitor.