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SHAREHOLDERS 股份协议

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发表于 2009-3-8 09:51:33 | 显示全部楼层 |阅读模式
The SHAREHOLDERS AGREEMENT


Why Bother?  为什么操这心?

A company is owned by its shareholders.  The shareholders appoint the directors who then appoint the management. 公司是由股东拥有。股东任命董事,董事任命管理人员。

The directors are the "soul"and conscience of the company.They are liable for its actions. Shareholders are not liable for company actions.Management may or may not be liable for company actions. 董事是公司的灵魂和良知,并为公司的行为承担责任。而股东不需要承担责任。管理人员可能也可能不为公司行为负责。

Often these roles are assumed by the same individuals but as a company grows and becomes larger, this may not be the case. 这些角色通常都会是相同的人来作。但是一旦随着公司增长变大,情况就可能变化了。

When a company is created, its founding shareholders determine how a company will be owned and managed. This takes the form of a "shareholders agreement".

As new shareholders enter the picture, for example angel investors, they will want to become part of the agreement and they will most likely add additional complexity. For example, they may want to impose vesting terms and also mechanisms to ensure that they ultimately can exit and get a return on their investment. Not having such an agreement can lead to serious problems and disputes and can resultin corporate failure. It's a bit like a prenuptial agreement.

Companies must comply with the law. Companies are incorporated in a particular jurisdiction (e.g. State, Province or Country) and must adhere to the applicable legislation, e.g. the Canada Business Corporations Act, or the B.C. Corporations Act. This legislation lays out the ground rules forcorporate governance - what you can and cannot do, e.g. who can be a director?can a company issue shares? how can you buy or sell shares? etc. When acompany is formed, it files a Memorandum and Articles of Incorporation(depending on jurisdiction) which are public documents filed with theRegistrar of Companies. A shareholders agreement is confidential and itscontents need not be filed or made public.

When a company is formed, its shareholders may decide on a set of groundrules over and above the basic legislation that will govern their behavior.For example, how do you handle a shareholder who wants "out" (and sellher shares)? Should it be possible to "force" (i.e. buyout) a shareholder?How are disagreements handled? Who gets to sit on the Board? What authorityis given to whom for various decision-making activities? Can a shareholder (i.e. company founder) be fired? And so on...

A company which is wholly owned by one person need not have such anagreement. However, as soon as there is more than one owner, such anagreement is essential. The spirit of such an agreement will depend onwhat type of company is contemplated. For example, a three-owner retailshop may adopt a totally different approach to that of a high tech venturewhich may have many owners. When a company has hundreds of shareholdersor becomes a "public" company, the need for such an agreement disappearsand the applicable Act and securities regulations then take over.

Corporate Governance

There is no substitute for good corporate governance. Even small companies with few shareholders are better served by good governance practices. Instead of trying to anticipate every possible future event or trying to be overly prescriptive, a structure that ensures the installation of an experienced board of directors is arguably the best approach. Why? Because directors are responsible to the company - NOT to the shareholders as is commonly thought. If directors add diligently with this mandate, many problems that arise can be solved.

First Steps

Before jumping into a shareholders' agreement, some very careful thoughtmust be given to the share ownership. Who owns how many shares (and forwhat contribution - cash? time? intellectual property, etc)? And, how arethese shares held? This is the time to talk to tax experts about some seriouspersonal tax planning. Too many entrepreneurs ignore this important facetof owning shares only to find that when they "cash in", they have a majortax headache. One should consider the merits of using Family trusts orissuing shares to one's spouse and children. How is share ownership (andsubsequent selling) treated by the tax authorities? Is there a disadvantageto granting stock options to employees versus giving shares (with possiblevesting provisions) to them instead? Please refer to related articles on"structuring" and "dividingthe pie".A "Cap Table" (ie Capitalization Table) is essential.

What to Include

Some of the main points (ie. a checklist) to include in a shareholders agreement are:

  • what is the "structure" of the company? (andhow is equity divided among shareholders?)
  • should the agreement be unanimous and involve all (or just some) of theshareholders?
  • who owns (or will own) shares (i.e. the parties to the agreement), i.e. a "capitalization table" often called a "cap table".
  • are there vesting provisions? (i.e. shares may be subject to cancellationis a shareholder/manager quits)
  • are shareholders allowed to pledge or hypothecate their shares?
  • who is on the Board? What about outside board members?
  • who are the officers and managers?
  • what constitutes a quorum for meetings?
  • what are the restrictions on new equity issues, e.g. anti-dilution aspects,pre-emptive rights and tag-along provisions
  • how are ownership buyouts to be handled? (e.g. shotgun clause approachversus voluntary sale approach)
  • how are disputes to be resolved among shareholders? (arbitration clause?)
  • how are share sales handled? e.g. first right of refusal
  • what are a shareholders' obligations and commitment? (conflict of interestor commitment? Full-time or ??)
  • what are shareholders' rights? (what information, financial statements,reports, etc.can shareholders access?)
  • what happens in the event of death/incapacity?
  • how is a share valuation determined (e.g. to buy out an estate in the eventof death)
  • is life insurance required? e.g. funding for purchase of shares from estateor for key person insurance
  • what are the operating guidelines or restrictions (budget approvals, spendinglimits banking, etc)
  • what types of decisions require unanimous board and/or unanimous shareholderapproval?
  • compensation issues - remuneration of officers & directors, dividendpolicies
  • are other agreements required as well, e.g. management contracts, confidentialityagreements, patent rights, etc?
  • should there be any restrictions on shareholders with respect to competinginterests?
  • what could trigger the dissolution of the business?
  • what is the liability exposure and is there any corporate indemnification(and insurance)?
  • who are the company's professional advisors (legal, audit, etc.)?
  • are there any financial obligations by shareholders (bank guarantees, shareholderloans, etc)?
Some Do's & Don'ts:

  • don't confuse shareholder issues with management issues
  • don't confuse return on capital with return on labor (i.e. cash investmentvs founders' time commitment)
  • don't assume that everyone will always be agreeable (greedy? who-me?)
  • don't get bogged down in legalese - decide what you want, then haveyour lawyer put it in proper form
  • do make sure everyone's objectives and visions are compatible (this canbe a major problem area)
  • do separate the roles of shareholders, directors, and managers (these rolesoften get confused in these agreements)
  • do talk to others who have gone through this process
  • do ask yourself what the downside is,  i.e. what's the worst thatcan happen to you under the agreement?
  • do get some tax advice. It is very important that some tax planning bedone early to avoid a headache later when you've made millions. e.g. youwant to make sure that you are not compensated by being given shares, youwant to make sure you own shares early so that you can use the small businesslifetime capital gains exemption, maybe a family trust or holding companyshould own your shares.
Questions to AskAfter drafting an agreement, it is a good idea to ask a few key questionsto ensure that the agreement will in fact be useful. Ask yourself the following:

1.Am I happy with my ownership stake? (If I'm the key founder, am Itreating others fairly?)
2.Can I get out of this deal if I need to? i.e. can I sell the shares?
3.Can I buy more shares (ie more control) if I'd like to?
4.Am I committing to something I cannot live up to?
5.Will I be able to exert sufficient influence to protect my investment?
6.What is my total financial exposure and legal liability (presentand future) on this deal?

Other Points to Consider
Preparing and discussing such an agreement will give you valuable insightsinto other parties' styles, objectives, etc. It should force a close andhonest evaluation of who will do what and who is committed to doing what.Most importantly, are the founders' personal goals, objectives and propensitiesto take risk compatible? If one founder envisages a small, closely-heldcompany as way to be self-employed and another envisages a dynamic, go-for-itenterprise, this marriage won't work!  Even if you're not sure aboutcertain things and no matter how thorough you are, you will overlook something.Do it, then fix it if necessary, i.e. revise an agreement later ratherthan defer having one in the first instance.

Typical Format and Contents for a Shareholders Agreement(see sample agreement in conjunction with this discussion)

SHAREHOLDERS' AGREEMENT

This agreement is made as of ___________ (date).

BETWEEN:
List all parties, including individuals, individuals' holding companies,and the corporation itself.
Also show (here or in an appendix) the number of shares (and classes)owned by each of the parties.

ARTICLE 1: DEFINITIONS

Define all terms used throughout the agreement, for example: Common share ratio, Special Directors' resolution, Buyer, Seller, Vesting (a very important one that is often misunderstood), etc.

ARTICLE 2: ORGANIZATION OF THE CORPORATION

Board of Directors: How many? Who initially? Meet how often? How aredirectors appointed/replaced? Quorum? Voting - majority, unanimous, etc?(may also refer to By-Laws re elections) Officers: Who initially? Remuneration?Banking: who is authorized? ALL financial transactions to go through acorporate bank account. Who (Officers vs Directors - majority or unanimous)can: approve expenditures over a specific amount? approve acquisitions?elect officers? payment of cash or stock dividends? enter into debt obligations?approve stock purchase/option plans? dispose of any part (or assets) ofthe business? sell rights to products, licenses etc? transfer shares? liquidateor windup the corporation? approve contracts outside the ordinary courseof business? enter into any contract above $x? authorize the lending (orborrowing) of money by the corporation? guarantee any obligations? hireemployees (at various levels)? approve salaries and bonuses? alter sharestructure? redemption of shares? enter into consulting arrangements?

This section should also state that the shareholders will ensure thata business plan (i.e. budget) is prepared and updated, approved, and inforce at all times.

In this section, some possible sub-sections could include the following:
Governance

Composition of Board
Compensation of Board
Meetings of the Board

Matters Requiring Board Approval by Special Resolution
Directors, Shareholders and Company Obligations
Founders Obligations and Vesting Provisions
Termination in the event of Death
Management Contracts

ARTICLE 3: RIGHT OF FIRST REFUSAL

It may be desirable to give all shareholders the right to purchase sharesfrom a shareholder desiring to sell his shares prior to his shares being soldto a third party (i.e. a pre-emptive right). How does a Seller offer shares?Time acceptance periods? There likely should be provisions for pro-ratadistributions for any shares not purchased. How could a shareholder(s)offer to buy shares from other shareholders?

ARTICLE 4: COATTAIL ("TAG ALONG") & FORCED ("DRAG ALONG") & BUY-OUT ("SHOTGUN") PROVISIONS

If a group of shareholders wants to sell its shares, constituting a majorityof shares, the minority holders should have the right to tag-along - i.e. includetheir shares in a sales to outsiders.
If a buyer wants to buy the company and most shareholders are keen to sell, the small minority that wants to hold out for a better price or refuses to sell (ego problem maybe?), may be obligated to go along with a deal if more than a given number (say 90%) of shares are being offered to a buyer.
If a shareholder withdraws, should he be able to "force" the other shareholdersto buy his shares? If he is forced out, can he keep his shares? If a shareholder(like a founder) gets shares for making certain commitments to the companyover time, certain vesting conditions need to be specified. For example,if a founder quits, he should forfeit a percentage of his shares (if heagrees to a 3-year vesting and quits after 6 months, then he forfeits 5/6of his shares. Perhaps the departing shareholdershould sell some of all of his shares back to the company (or to othershareholders, pro-rata). In this case, a method of valuation (see below)would need to be established. (could include vesting details and termination on death in Article 2)
A "shotgun" clause is often used to force a buy-out. It works like this:Shareholder A offers his shares to Shareholder B for a certain price pershare (in the case of 2 shareholders). B can accept this offer or, in turn,offer the same terms to A in which case A must accept. This ensures thatA will offer a "fair" price. In essence, one party will end up buying theother out (of course, the two parties can amicably simply agree on a price- this is easy if a shareholder wants to exit to pursue other interests.It gets tougher if both want to own and run the company. The shotgun approachis ideal for small businesses where the values are not too high becausethey favor the party with more cash resources. For high tech companieswith high valuations and several shareholders, the shotgun approach wouldnot work very well.
What happens is a shareholder dies? There should be a fair means by whichthe surviving shareholders can (optionally or mandatorily) purchase shares from the estate of the deceasedshareholder. The company ought to have life insurance policies in placeso that such buy backs can be funded. It is a good idea to get some experttax accounting advice on this matter as well. How will a value be placedon the shares? Options: outside valuation expert (expensive and unpredictable)or get the shareholders to mutually agree to a value and append this tothe agreement as a schedule (which is periodically updated) or use a formula(multiple of earnings or sales, book value, etc) or a combination of theabove.

ARTICLE 5: PRE-EMPTIVE RIGHTS

If new shares are to be issued from treasury, shareholders will generallybe entitled to buy these before the company offers them to an outside investor(to avoid dilution). If an outside investor (e.g. venture capitalist) isbrought in, these pre-emptive rights would likely have to be waived.

ARTICLE 6: RESTRICTIONS ON TRANSFER, ETC.

Spells out Share transfer restrictions, consents from others that maybe required, etc.

ARTICLE 7: TERMINATION

Under what circumstances is the agreement terminated? (e.g. bankruptcy,dissolution, unanimous consent) Are there any penalties? What consitutesa breach? This is important where owners are committing "sweat equity"- what if they don't perform? If a shareholder defaults, what happens (timeto correct default?), termination and buyout?

ARTICLE 8: GENERAL COVENANTS
What is the legal jurisdiction? Should also cover routines such as Noticeof meetings - addresses, etc. and some other details, e.g. that the agreementis binding on heirs and successors.

SCHEDULE A: SHAREHOLDINGS LIST and/or CAP TABLE

List all parties' holdings - class and number.
SCHEDULE B: VALUATION SCHEDULE

Allow for a valuation of the business to be agreed to and updated regularly(e.g.every 6 months) include a space for signatures.

Sample AgreementFeel free to look at a sample agreement,albeit unprofessionally drafted, for some specific dertails. It will atleast get you started. DON'T rely solely on your lawyer's advice. Lawyersdo have their biases and may steer you in a direction that is not in yourbest interest. (Note - are they acting for you personally or for the companyor for other shareholders?)  Talk to other entrepreneurs who havegone through this exercise. Their experience may be worth many legal lunches!

[size=-1]Mike Volker is the Director of the University/IndustryLiaison Office at Simon Fraser University, Past-Chairman of the Vancouver EnterpriseForum, President of WUTIF Capital and a technology entrepreneur.
 楼主| 发表于 2009-3-8 10:06:32 | 显示全部楼层
Typical Format and Contents for a Shareholders Agreement(see sample agreement in conjunction with this discussion)
SHAREHOLDERS' AGREEMENT
This agreement is made as of ___________ (date).
BETWEEN:
List all parties, including individuals, individuals' holding companies,and the corporation itself.
Also show (here or in an appendix) the number of shares (and classes)owned by each of the parties.
ARTICLE 1: DEFINITIONS
Define all terms used throughout the agreement, for example: Common share ratio, Special Directors' resolution, Buyer, Seller, Vesting (a very important one that is often misunderstood), etc.
ARTICLE 2: ORGANIZATION OF THE CORPORATION
Board of Directors: How many? Who initially? Meet how often? How aredirectors appointed/replaced? Quorum? Voting - majority, unanimous, etc?(may also refer to By-Laws re elections) Officers: Who initially? Remuneration?Banking: who is authorized? ALL financial transactions to go through acorporate bank account. Who (Officers vs Directors - majority or unanimous)can: approve expenditures over a specific amount? approve acquisitions?elect officers? payment of cash or stock dividends? enter into debt obligations?approve stock purchase/option plans? dispose of any part (or assets) ofthe business? sell rights to products, licenses etc? transfer shares? liquidateor windup the corporation? approve contracts outside the ordinary courseof business? enter into any contract above $x? authorize the lending (orborrowing) of money by the corporation? guarantee any obligations? hireemployees (at various levels)? approve salaries and bonuses? alter sharestructure? redemption of shares? enter into consulting arrangements?
This section should also state that the shareholders will ensure thata business plan (i.e. budget) is prepared and updated, approved, and inforce at all times.
In this section, some possible sub-sections could include the following:
Governance
Composition of Board
Compensation of Board
Meetings of the Board
Matters Requiring Board Approval by Special Resolution
Directors, Shareholders and Company Obligations
Founders Obligations and Vesting Provisions
Termination in the event of Death
Management Contracts

ARTICLE 3: RIGHT OF FIRST REFUSAL
It may be desirable to give all shareholders the right to purchase sharesfrom a shareholder desiring to sell his shares prior to his shares being soldto a third party (i.e. a pre-emptive right). How does a Seller offer shares?Time acceptance periods? There likely should be provisions for pro-ratadistributions for any shares not purchased. How could a shareholder(s)offer to buy shares from other shareholders?
ARTICLE 4: COATTAIL ("TAG ALONG") & FORCED ("DRAG ALONG") & BUY-OUT ("SHOTGUN") PROVISIONS
If a group of shareholders wants to sell its shares, constituting a majorityof shares, the minority holders should have the right to tag-along - i.e. includetheir shares in a sales to outsiders.
If a buyer wants to buy the company and most shareholders are keen to sell, the small minority that wants to hold out for a better price or refuses to sell (ego problem maybe?), may be obligated to go along with a deal if more than a given number (say 90%) of shares are being offered to a buyer.
If a shareholder withdraws, should he be able to "force" the other shareholdersto buy his shares? If he is forced out, can he keep his shares? If a shareholder(like a founder) gets shares for making certain commitments to the companyover time, certain vesting conditions need to be specified. For example,if a founder quits, he should forfeit a percentage of his shares (if heagrees to a 3-year vesting and quits after 6 months, then he forfeits 5/6of his shares. Perhaps the departing shareholdershould sell some of all of his shares back to the company (or to othershareholders, pro-rata). In this case, a method of valuation (see below)would need to be established. (could include vesting details and termination on death in Article 2)
A "shotgun" clause is often used to force a buy-out. It works like this:Shareholder A offers his shares to Shareholder B for a certain price pershare (in the case of 2 shareholders). B can accept this offer or, in turn,offer the same terms to A in which case A must accept. This ensures thatA will offer a "fair" price. In essence, one party will end up buying theother out (of course, the two parties can amicably simply agree on a price- this is easy if a shareholder wants to exit to pursue other interests.It gets tougher if both want to own and run the company. The shotgun approachis ideal for small businesses where the values are not too high becausethey favor the party with more cash resources. For high tech companieswith high valuations and several shareholders, the shotgun approach wouldnot work very well.
What happens is a shareholder dies? There should be a fair means by whichthe surviving shareholders can (optionally or mandatorily) purchase shares from the estate of the deceasedshareholder. The company ought to have life insurance policies in placeso that such buy backs can be funded. It is a good idea to get some experttax accounting advice on this matter as well. How will a value be placedon the shares? Options: outside valuation expert (expensive and unpredictable)or get the shareholders to mutually agree to a value and append this tothe agreement as a schedule (which is periodically updated) or use a formula(multiple of earnings or sales, book value, etc) or a combination of theabove.
ARTICLE 5: PRE-EMPTIVE RIGHTS
If new shares are to be issued from treasury, shareholders will generallybe entitled to buy these before the company offers them to an outside investor(to avoid dilution). If an outside investor (e.g. venture capitalist) isbrought in, these pre-emptive rights would likely have to be waived.
ARTICLE 6: RESTRICTIONS ON TRANSFER, ETC.
Spells out Share transfer restrictions, consents from others that maybe required, etc.
ARTICLE 7: TERMINATION
Under what circumstances is the agreement terminated? (e.g. bankruptcy,dissolution, unanimous consent) Are there any penalties? What consitutesa breach? This is important where owners are committing "sweat equity"- what if they don't perform? If a shareholder defaults, what happens (timeto correct default?), termination and buyout?
ARTICLE 8: GENERAL COVENANTS
What is the legal jurisdiction? Should also cover routines such as Noticeof meetings - addresses, etc. and some other details, e.g. that the agreementis binding on heirs and successors.
SCHEDULE A: SHAREHOLDINGS LIST and/or CAP TABLE
List all parties' holdings - class and number.
SCHEDULE B: VALUATION SCHEDULE
Allow for a valuation of the business to be agreed to and updated regularly(e.g.every 6 months) include a space for signatures.

Sample AgreementFeel free to look at a sample agreement,albeit unprofessionally drafted, for some specific dertails. It will atleast get you started. DON'T rely solely on your lawyer's advice. Lawyersdo have their biases and may steer you in a direction that is not in yourbest interest. (Note - are they acting for you personally or for the companyor for other shareholders?)  Talk to other entrepreneurs who havegone through this exercise. Their experience may be worth many legal lunches!
[size=-1]Mike Volker is the Director of the University/IndustryLiaison Office at Simon Fraser University, Past-Chairman of the Vancouver EnterpriseForum, President of WUTIF Capital and a technology entrepreneur.
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