Guide to Shareholders Agreement
One of the main documents for a company having equity investors is the shareholders agreement. Shareholders agreement is a legal agreement between the shareholders of a company, which helps establish a fair relationship between the stakeholders and govern the operation of the company. Some of the key areas covered in a shareholders agreement are:
- Rights and obligations of the shareholders.
- Rights and obligations during sales of shares of the company.
- Right and obligations of the Company Management.
- Rights and obligations of the Investor.
In this article, we decode a shareholders agreement format to understand the various parts of a shareholder agreement and its importance.
Parties in a Shareholder Agreement
Shareholders agreement is entered into by the present shareholders of the company, investors and the company. Once, the parties of the shareholders agreement are defined. Recitals providing a reason for the shareholders agreement is defined. Some of the important clauses in this part include the following:
“Both the shareholders have agreed to become Equity Partners by investing in the shares of the Company subject to the condition that they shall enter into a Shareholders Agreement in terms of these presents”
“The shareholders have agreed to jointly manage the company, incorporated under the Companies Act, 2013 (hereinafter referred to as the “Company”)
Typically, the business activity proposed to be conducted by the Company, for which the shareholders have come together and invested is defined in the shareholders agreement. A clause to change the business activity of the company with the consent of all shareholders is also entered in the agreement.
“The company shall carry on the business of delivery of food, either by itself or through other agencies and may carry on any other business as may be decided by the Shareholders from time to time and shall ensure that no other business activity is undertaken by the Company at any time without the consent of both the Shareholders”
Authorised & Paid-Up Capital
The authorised capital of the company, the amount of shares to be purchased by the investor and the paid up share capital of the company will be defined in the shareholders agreement. Further, a clause might also be inserted to ensure that the company will not issue any further capital without the consent of both the shareholders in writing.
“It is hereby agreed that there shall be no further issue of capital without the consent of both the Shareholders hereto, and unless otherwise agreed upon in writing further investment shall be as mutually decided by both Shareholders.”
Board of Directors
The Board of Directors of the Company is also defined along with the rights of each of the Shareholders to appoint Directors. Further, the Quorum for a meeting of the Board of the Company is also defined, if it is to be different from the Articles of Association of the Company.
“Shareholder A shall have the right to nominate two (2) Additional Directors onto the Board and Shareholder B shall have the right to nominate three or more Additional Directors on the Board. Both parties shall be entitled at any time to remove any of the representatives on the Board by written notice to the other party and to appoint another or other/s in their place.”
The process for voting on resolutions is also defined in the shareholders agreement along with major items that require prior written consent of the shareholders and/or Directors and a Resolution passed by the Board of Directors.
“No resolution shall be passed or decision taken either by the Board or the Shareholders on any of the following matters, unless the prior written consent of the Shareholders and/or Directors is obtained n order for it to be validly passed or taken:
- Changes to the scope and nature of business activity undertaken by the Company;
- Borrowing money in excess of Rs.XXXX by the Company.
- Declaring dividends.”
Auditors of the Company
The Auditors of the Company are also mentioned in the shareholders agreement along with a clause to ensure that the Auditors of the Company cannot be changed without the prior written consent of both shareholders or the Directors.
Transfer or Sale of Shares
The areas concerning transfer or sale of shares of the company are usually well defined in a shareholders agreement. It is not uncommon for a clause to be inserted forcing the other party to first offer to sell the shares of the company to the other shareholder, and only on refusal to purchase be allowed to sell to another party.
“If either of the shareholders desire at any time to sell the whole or part of their shares of the Company, the shareholder shall first offer such shares in writing to the other shareholder. If the other party does not accept the offer within XX days, then the first party will be at liberty to sell the shares so offered to any other person of choice at the same price and on the same terms and conditions, as contained in its offer to the other Party hereto in the first instance.”
A clause for arbitration is entered in most shareholders agreement to ensure speedy resolution of any disputes. The following clause can be included in a shareholders agreement to invoke arbitration.
“Any dispute or difference whatsoever arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this agreement or the validity or the breach thereof shall be settled by arbitration in accordance with the Rules of International Commercial Arbitration of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties.”
If you would like to create a shareholders agreement for your startup, you can visit IndiaFilings to consult with a Corporate Lawyer specialising in the drafting of shareholders agreement.