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.