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receiving shareholder to buy his/her
shares at a nominated price. If the
receiving shareholder chooses not to
buy those shares, he/she must sell
his/her shares to the initiating party
at the same nominated price.
·
Chairman clause ­ enables one of the
shareholders to become the chairman
in the event of a deadlock and have
the casting vote on the dispute.
·
Liquidation clause ­ if the deadlock
continues for a set period of time,
all the company's assets will be sold
and the company will be divided up
voluntarily. The shareholders equally
share in the expenses of liquidating
the business. This solution is
generally a last resort when there is
no alternative other than to liquidate.
3. Pre-Emptive Rights
Pre-emptive rights impose certain
restrictions on the transfer of shares.
Pre-emptive rights may include:
·
Right of first refusal ­ provides
existing shareholders the first
opportunity to purchase the shares
from another shareholder of the
same company before the shares
can be offered to parties outside
the company.
·
Right to refuse transfer ­ the board
will have the discretion to refuse
to register a transfer of shares to
prevent unwanted parties from
joining the company.
·
Board consent to transfer ­ a
shareholder wishing to transfer
his/her shares will have to obtain
the consent of the board to transfer
shares or transfer shares to
certain parties.
4. Mandatory Sale Events
The shareholders' agreement should
specify certain fundamental changes
in circumstance which will trigger a
mandatory sale of that member's shares.
Examples of such events include:
·
A shareholder's death
·
A shareholder's insolvency/
bankruptcy
·
Certain fundamental breaches of
shareholders' agreement
·
Temporary or permanent disability
·
Cessation of employment
·
Loss of professional certification
(where this is required because the
company trades, for example, as a
doctor's surgery or a law practice).
5. Share Valuation Methods
The shareholders' agreement must
stipulate a method for determining the
value of shares in relation to pre-emptive
rights and mandatory sale events. Typical
share valuation methods include:
·
Fixed price ­ price agreed by the
shareholders.
·
Assets based ­ the value of the net
assets divided by the current number
of shares.
·
Expert valuation ­ usually, valuation
by an accountant.
·
Board valuation ­ those directors
who are not directly involved in the
transaction value the shares.
As discussed above, every company
is unique. Similarly, every dispute that
arises between the shareholders of a
given company will be unique. Despite
the difficulty in predicting the range
and nature of disputes that may arise,
prudent investors should always insist on
a shareholders' agreement with at least
the clauses identified in this article. The
initial expense incurred in preparing a
well drafted shareholders' agreement
will pale in comparison to the cost of
any dispute.