Is your company growing or scaling? Are you seeking external funding? Do you need to offer shares in your company to potential shareholders?
We recently hosted a Business Growth Webinar with Robert Dickson, Corporate Partner at leading law firm Mason Hayes & Curran LLP and he shared his expert knowledge of Shareholders’ Agreements, Constitutions and certain rights of a company and its shareholders.
Robert has experience in a broad range of industries from technology, to food and beverage, to professional services and more. He advises on areas such as Shareholders’ Agreements, mergers & acquisitions, reorganisations, equity investments, partnerships, and venture capital, so Robert’s knowledge is very relevant to startups and scaling companies.
In this blog, we’re sharing the most popular questions asked during the Business Growth Webinar:
- What are Shareholders’ Agreements?
- Are Shareholders’ Agreements always needed by companies with more than one shareholder?
- Is there a Shareholders’ Agreement template?
- Can an accountant give an opinion on Shareholders’ Agreements?
- What’s the difference between the Constitution and a Shareholders’ Agreement?
- What’s in a Shareholder’s Agreement?
What are Shareholders’ Agreements?
Shareholders’ Agreements are legally binding contracts between the people or entities who own the company, i.e. its shareholders, and (usually) the company itself.
It could be considered as the “playbook” for the company as it outlines the company’s and shareholders’ rights and obligations, including processes for certain scenarios, such as exit mechanics and transferring shares.
Three important aspects of Shareholders’ Agreements:
- Control. Who’s really pulling the strings?
- Rights to ongoing cash. What happens to the profits?
- Exit. Who has a right to call for the company to be sold? Who has a right to sell their shares and in what circumstances can that right become available?
Are Shareholders’ Agreements always needed by companies?
Shareholders’ Agreements are not legally required in any scenario and are not needed in single-member companies (i.e. a company that has just one shareholder).
However, if there is more than one shareholder, Robert generally recommends that the company should adopt a Shareholders’ Agreement unless the company is at a very early stage and there is a cost or strategic reason to avoid doing so.
Is there a Shareholders’ Agreement template?
There are templates available online, but Robert warns that you should be careful about signing any document containing any terms you don’t fully understand and which you have not been advised on. Even if there are only discrete areas of the document that are unclear to you, you should seek advice on those aspects.
Shareholders’ Agreements are legally binding contracts so although getting advice can cost money, advice on even very targeted aspects of an agreement such as this can be available at a low cost and can save you a lot of money in the long term.
Can an accountant give an opinion on Shareholders’ Agreements?
If you have already hired an accountant that you consider to be a trusted advisor, it’s natural to want to seek their advice on a Shareholders’ Agreement.
On the other hand, accountants won’t have the knowledge to give a legal opinion and wouldn’t usually be an expert about this topic, so any questions about legal documentation should be directed to a solicitor or legal firm like MHC.ie.
What’s the difference between the Constitution and a Shareholders’ Agreement?
- Requirement. Every Irish Limited company needs to have a Constitution in order to set up – you can’t set up a company without one and a company needs to have one at all times. On the other hand, a Shareholders’ Agreement isn’t legally required and would only be entered into when there is more than one shareholder.
- Accessibility. The Constitution is publicly available whereas a Shareholders’ Agreement is a private and confidential document.
- Shareholders’ Agreements should prevail over the Constitution. A Shareholders’ Agreement should be consistent with the Constitution so it’s important that no provision in the Constitution conflicts with your Shareholders’ Agreement. In case there is an inadvertent conflict between the terms of the two documents, it is important to include a term in the Shareholders’ Agreement stating that in the event of a conflict between the two documents, the Shareholders’ Agreement will prevail.
Seeking external funding?
For companies at an early stage with plans to seek external funding, Robert’s tip here is to make sure you understand the Constitution’s contents and ask for clarification on any provisions you do not understand if you instruct a company formation provider.
Subsequent investors will want to see a clear picture during their due diligence process, so arrangements should be tightly documented and straightforward compliance requirements, such as having an accurate register of members, should be met.
1. The conduct of the Board of Directors
This clause sets out specific details on how the company is to be run at board level.
The general details include:
- Number of Directors
- Who has the right to appoint them?
- Number of Directors’ meetings annually
- Quorum / Quorum for a re-convened meeting (i.e. the number of Directors that need to be present for a meeting to proceed)
- Observers’ rights (i.e. this can be any individual person who has the right to contribute to the debate / go to a meeting, but he/she doesn’t have a vote)
- Weighted voting – although this is more unusual, it’s sometimes seen in certain situations where one Director has the right to exercise 3 votes vs. the other Directors only have the right to cast a single vote
2. Decision making of the Company
Shareholders’ rights and list of matters which cannot be carried out without the consent of a certain proportion of shareholders.
3. Restrictions on transfer of shares
Different types of restrictions on transfer for shares include outright transfer veto, permitted transfers, and good leaver / bad leaver. If you need advice on these types of rights, talk to Robert or consult with your lawyer for advice on how to proceed.
4. Exit mechanics
This is a hugely important part of a Shareholders’ Agreement. For example, it sets up the terms of a shareholder exiting the company, who can trigger a sales process, and who gets what on an exit when there are different classes of shares (also known as a waterfall).
The following rights are usually included in the Shareholders’ Agreement or Constitution:
- Drag along. If a specified majority is selling their shares, they can force a minority to sell to the same third party at the same price.
- Tag along. If a specified majority is selling their shares but decides not to force the minority to also sell, the minority can force themselves into the sale and sell to same third party at the same price.
- Pre-emption on transfer. The selling shareholder has to offer the right to participate to every other shareholder. This means that if you want to sell your shares to a third party, you must offer to sell your shares to the other shareholders first.
- Pre-emption on an allotment. If the company wants to allot new shares to a third party, it must offer these shares to the existing shareholders first and only if the existing shareholders turn it down can the company allot new shares to a third party.
Shareholders’ Agreements are legally binding contracts, so it’s important you understand their contents before you sign them. There is a risk in leaving arrangements between the shareholders undocumented and unclarified, so it is well worth considering whether one should be put in place if your business does not currently have one.
Shareholders’ Agreements are usually most relevant when things go wrong (eg a disagreement between shareholders or directors), so make sure you are set up in a way that doesn’t block you from running your business.
Want to get in touch?
If you need legal advice and support, you can contact Robert on firstname.lastname@example.org or visit MHC.ie.
You can also talk to your accountant first and they can guide you on what you should do next.
Want to watch the webinar? Get in touch with us at email@example.com.
You can also check out our upcoming webinars on our events page here: https://accountantonline.ie/events/
Larissa is a Fellow Chartered Accountant (FCA) and is the CEO of Accountant Online, which specialises in company formation, company secretarial, annual accounting services, bookkeeping, tax, and payroll services for micro and small companies in Ireland and the UK.