A shareholders` agreement may also contain certain provisions that describe the rights and procedures to be followed when shareholders who hold a certain percentage of shares, usually at least a majority, wish to sell their shares to a third party. For example, should the remaining shareholders have the right to sell their shares to these third parties? Or should the remaining shareholders be forced to sell their shares? Some of the standard provisions are explained below. (c) An offer by a third party to acquire all or part of the shares (usually a controlling block) of one or more shareholders, but not all of them. The standard provision that does justice to this situation is a right of first refusal. However, an initial rejection may not be satisfactory if the other shareholders do not have the financial means to acquire, if the terms of the offer weigh on those funds, if the other shareholders seek to sell their own shares or if the offer is made by a person who is an eligible purchaser under the agreement; such as.B another shareholder. Family member or related party. Another method is piggyback or tag-along, where a selling shareholder can essentially only receive an offer that includes the shares of other shareholders. If you are considering drafting your own shareholder agreement, ask yourself the following questions: Some of the precedents discussed include references to advances or loans to shareholders. Since shareholders` investment in companies usually involves advances and/or loans, as well as the subscription or purchase of shares, it is assumed that the lawyer preparing the document will include them in the drafting of the appropriate provisions or provide for them separately and specifically. It is also assumed that the locking mechanism is treated separately, either specifically or generically. In the first approach, directors retain the power to take or fail to take action on a particular matter, and the role of shareholders is limited to that of ratification or rejection, usually by certain approval thresholds.
In the second case, the role of directors is restricted and shareholders are the only ones empowered to take action, ratify or defeat action on specific issues, again usually through the approval threshold(s). It can therefore be argued that, with respect to all measures taken under the first approach, the obligations and responsibilities of directors have been substantially unaffected by the restriction of only part of the administrator`s powers. For example, a prohibited dividend declared by directors despite shareholder approval would hold directors accountable to it. The most interesting question is whether the need for shareholder approval would make shareholders who approve liable at least in the same way or to the same extent as directors. And in both cases, they are entitled to the same protection that can be granted to directors, such as.B. Indemnification or insurance or right to object? In the withdrawal method, there doesn`t seem to be a good reason why they shouldn`t, but the approval method is less clear. (d) Other violations of the shareholders` agreement or other arrangements between the company and the shareholder: in addition to assessing the appropriateness of the remedies described in point (c), alternative or interim measures such as the suspension of certain rights on certain issues such as options, tenders or tenders should be considered. or provisions on the pooling of votes, for example .B. for the election of directors. However, care must be taken to ensure that there is no provision for any modification or suspension of rights that cannot be changed by the incoming legislation in the United States. For example, voting rights are subject only to legislation and articles of the MCA.
A provision of a shareholders` agreement that purports to restrict this right would likely be found to be invalid. Compare a provision in a shareholders` agreement that functioned as a pooling agreement that required the defaulting shareholder to vote in the same way as, for example, the majority of non-defaulting shareholders. Shareholders have the right to request access to the company`s records and books and can even sue their company for the misdeeds of its directors and other officers. Ordinary shareholders can vote on important business issues, such as . B who sits on the board of directors and whether a proposed merger will be approved. What is very important is that if a company has to liquidate its assets due to dissolution or bankruptcy, shareholders can take a proportionate amount of proceeds. In some cases, bondholders, creditors and preferred shareholders have priority over ordinary shareholders in the liquidation situation. Shareholders also have the right to take a portion of the dividends declared by the company. It should be noted that even if a U.S.
is in effect and all the powers of the directors have been transferred to the shareholders, the articles of the company still require the company to maintain a duly constituted board of directors. .