Shareholders agreements are a necessity for the owners of any company. They set out the rights of one shareholder against another. Majority and minority owners need a comprehensive agreement to protect their interests, their equity, and possibly their debt investment. Our agreements do just that, covering a large range of matters, simply and logically.
An agreement between the owners of a new company in any industry.
The template is drawn on 30 years of practical experience of our legal team in these matters. It includes all the standard options any shareholder might want, along with notes for each paragraph that explain in plain English how to edit the document.
It could be used by a shareholder looking to protect his investment, or by a professional advisor such as an accountant or solicitor.
This document is provided completely free of charge.
An agreement for a company that is controlled by a single shareholder-director, probably the founder, who has the largest individual shareholding. Other minority owners retain all their statutory rights, but otherwise have no special protection.
This is a shareholders agreement template for a JV that is operated through a company formed for that specific purpose.
The project that will be undertaken could be anything. Examples are: a property renovation, design and creation of a consumer product, or buying a company in order to sell the assets.
Because the company is likely to focus on achieving a single outcome, particular emphasis is placed on exit arrangements, including re-structuring.
This version includes the provisions that a large professional or institutional investor such as a business angel, venture capital or private equity investor would require to protect their investment.
It also considers the provisions of minority shareholders, who by virtue of the circumstances are likely to be the founders and friends and family of the founders.
Additional features to other documents include:
This shareholders agreement template suits the situation where each shareholder is the owner of his or her own leasehold property within a building or scheme that is managed by the company.
It provides clear and practical routes through the contentious areas of who controls what, and leaves the owners with an arrangement that maximises efficient, democratic management of the communal areas of their property.
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A shareholders agreement is a legally binding, private document that sets out further powers, rights and obligations that the owners have to each other and the company, beyond those that already exist under law or through the articles of association.
The Companies Act 2006 provides the over-arching rules under which all companies must operate including the rights and responsibilities of shareholders.
The articles of association set out how an individual company is run by the board of directors and the shareholders. This document records how the owners control and manage the business between themselves, providing the basic business structure. Many of the matters covered are procedures, such as how meetings are called, or how an offer to buy shares should be made. Companies are required to file their articles at the registrar (Companies House) and anyone can inspect them.
Further to that joint framework of the Companies Act 2006 and a company's articles, using a shareholders agreement, there is enormous scope to decide who may do what, and under what circumstances.
Having a shareholders agreement in place is essential for both majority and minority owners.
The reason why to write one is not one of compliance with the law, but for the protection of your personal interests - even if you are a majority shareholder who owns more than half of the total share capital.
Minority shareholders are likely to want greater control over the decisions that influence the value of their holding than the law gives them by default.
A majority shareholder may wish to make sure that minority shareholders cannot sell their shares easily to anyone who may have different ideas about the direction the company should take, or that a previous employee who left the company as a result of poor behaviour (commonly known as a bad leaver) has no say in decisions.
A shareholders agreement deals with issues of control:
Every agreement will balance different shareholder interests in different ways, including:
The type of business you carry out is less important than the contents of the document.
It is very easy to add industry-specific provisions to your agreement, but they still tend to boil down to questions of power or policy.
Although you can include strategy and objectives, it is a mistake to fill your shareholder agreement with matters that should best be covered in your business plan - a level even lower down the structure.
The following tend to be commonly included in a shareholders' agreement.
Executive directors are employees, accountable to the company and its shareholders. Where directors are also stock holders, as is so often the case, a director may be able to make decisions that benefit himself as a shareholder, but which are not in the interests of his fellow owners.
A shareholders agreement fulfils the role of an operating agreement. It allows you to set the limits of director power, and clarify what matters should be referred to the share holders for a decision. Doing so helps to ensure that owners are kept informed and that the most important decisions are made by them as a group, and not by the directors.
For example, your corporation may have a particularly charismatic president of the board, who although being a minority shareholder has great influence over the directors and who has a tendency to force through decisions on important issues.
The converse applies too. An agreement can also define what decisions a shareholder-director may take freely, without requiring a members meeting, allowing confident, decisive action when it is needed.
An agreement can also help resolve deadlock in decision making between the owners as shareholders. Without such provisions, it is possible that a situation that is not beneficial for the company or any owner continues indefinitely.
By default, voting power is in proportion to shares held. Your agreement can over-ride this basis, allowing you to specify the rules as to how decisions on subjects important to you are made. Minority shareholders can be given more say on certain issues.
For example, you might give every shareholder an equal vote on decisions relating to the appointment of directors regardless of proportionate ownership. In some circumstances, you might decide that each shareholder may be a director or appoint some other person to be a director. Another burning issue could be a sale to a third party.
Decisions on different subjects (known as reserved matters) could be decided in different ways depending on the importance of each subject to each shareholder. You can go as far as to completely separate ownership and control: useful if some shareholders may not have experience or knowledge of running the company to allow them to make effective decisions. For family businesses and companies where some shareholders hold shares only as an investment, this ability to separate ownership from governance is likely to be a useful feature.
Having a written shareholders agreement in place can help prevent other owners from reducing the value of your investment by their actions. It can do this by setting out:
Some aspects of management can be set out in the company's articles of association. However, unlike the articles, your shareholders' agreement is a private document that you don't have to file with Companies House or make publicly available.
Only you and other owners will know the arrangements you have. How your company is managed therefore remains confidential.
Disputes between owners and other stakeholders are expensive and can be disruptive and detrimental to the on-going operation of the business.
Many matters are likely to be discussed at each annual general meeting of the members. Some will require immediate action and therefore will be voted on. Others will come under strategic or contingency planning, such as under what circumstances owners agree to a merger if approached.
The likelihood is that over a period of time, consensus might be forgotten on any single issue if it wasn't something that required a vote.
Discussing these matters at the outset when starting a new business or when a new shareholder arrives and then recording them in writing limits the scope for a single member to scupper the plans of the other stockholders by claiming that he or she has never been involved in such decisions.
In other words, having a shareholders agreement written in plain English means that shareholders are less likely to dispute what was agreed upon when the document was signed.
Thought in advance about what subjects might be sensitive, and therefore likely to create disagreement helps avoid future disputes.
The inclusion of a dispute resolution procedure (which could be arbitration or mediation) within each shareholder agreement template makes resolving any that do occur easier.
A shareholders agreement allows you to plan for the worst so as to keep the business going. Within it, you can set out what would happen should certain events occur, whether the sudden departure of a key founder or the withdrawal of a source of funding.
Writing one, together with the other owners, is a process that allows you collectively to evaluate the risks to each of you. It can help with business planning, especially for a new business, and business continuity planning (e.g. ensuring that there is shareholder protection insurance in place).
Like all Net Lawman documents, our shareholder agreement templates are in Microsoft Word format. The main advantage of a Word document is that you are not restricted in what you can edit - you really can create an agreement that fits your business. Of course, as your business grows, you can also revisit the document and amend it as necessary. Features within Word such as Track Changes allow you to collaborate with other owners easily.
The law relating to these documents is both corporate law (principally the Companies Act 2006) and commercial contract law.
Our guidance notes make it clear which paragraphs you can safely edit or delete, and which we recommend leaving as drawn.
However, your shareholders' agreement is always subject to the articles of association. If you are putting one in place, it is usually a good time also to review and update your company's articles to make sure that there are no conflicts between the two documents.
Our templates are written in plain English by a solicitor who specialises in commercial drafting and who has practical experience in resolving shareholder disputes.
As a former director of numerous private and publicly listed companies, he includes practical, real world considerations. These agreements are comprehensive in the cover of legal and management issues.
For various reasons, many start-ups want vesting provisions. That is, a shareholder can cash out his or her equity only after an agreed period has passed, or when his or her performance is satisfactory or when a certain event occurs.
In the US, the terms under which vesting will happen are usually placed in the shareholders' agreement. At Net Lawman, we believe that for technical legal reasons, it is better to place them in other documents.
We recommend either:
Agreeing on a methodology for the valuation of private shares is important and can be done within the agreement.
A shareholder may wish to exit the business or sell their shares (or just some of their shareholding) to generate cash.
Or you might be making a new issue of shares as a result of launching an employee management incentive scheme.
Share valuation methodology is often important for dispute resolution - an otherwise unresolvable dispute may be most easily solved by one shareholder buying out another.
While share prices for public companies can easily be estimated from recent trades on the stock market, those for private companies are more difficult to ascertain, particularly if the company is a relatively new business.
All these shareholder agreement templates include provision for valuation of the shares of a departing shareholder by reference to a valuation based on your instructions to an accountant. The valuation depends on the parameters used, so your instructions are critical. For example, you might choose to use a multiple of average EBITDA over a certain number of years, or a multiple of average net assets.
We have provided comprehensive wording that you can edit according to the deal you wish to strike with a selling shareholder.
These provisions are included in our shareholders' agreement for an institutional investor because it is in that situation where they are most sought after, but the presence of an institutional investor is not a pre-requisite for using them.
Tag along and drag along provisions are essential if you anticipate a sell-out to which not all shareholders might agree.
They provide that:
Right of first refusal can help protect from an unwanted outsider buying into the business if one of the other shareholders decides to sell.
A professional investor will nearly always require these provisions so that his exit route is clear.
The limited liability that an incorporated business structure affords is an enormous advantage for startups, a small business, or a nonprofit over a general partnership or sole proprietorship because as its own legal entity, it reduces personal liability for losses.
Advantages of family investment companies over trusts are the flexibility of structuring and the ability to transfer ownership and control gradually.
An advantage over a limited liability partnership or LLP is that shares easily allow the corporation to be divisible between shareholders, and as such, parts of varying sizes can be acquired or divested.
However, limited liability should not be confused with removing responsibility or obligation entirely. Directors have specific responsibilities under the Companies Act and other law.
Reserved matters are decisions regarding the management of the company that can only be made having obtained consent from a special majority (shareholders who hold more than 75% of the voting shares, or possibly unanimity).
For example, reserved matters might include:
Some reserved matters are specified under the CA 2006 (i.e. creating a statutory legal right), and others such as your policy on paying dividends can be written into a shareholders agreement (i.e. creating a contractual right between each shareholder and the corporation itself).