It seems like a typically Kiwi thing to do - a couple of mates decide to go into business together and start up a company to operate the business. Everything is split down the middle - each director owning 50% of the shares and all agreed on a handshake.
What could go wrong?
The recent liquidation of a small business shows just what can happen. Things went well for the first couple of years. Business was going okay and making a small profit but then things started to go wrong.
The relationship broke down between the shareholders and got to the stage where they couldn't agree on anything to do with the business including staff management and business direction.
Legal advisors became involved and an attempt was made to resolve the issues by one of the shareholders buying out the other's interest. Unfortunately, they couldn't agree on the value of the business.
As a result, the decision was made and agreed to by both shareholders to liquidate the company. The liquidation process was made more protracted and costly by the sniping between the shareholders leading to higher liquidation fees and therefore a reduced payment to creditors.
There are no guarantees of course but this situation may have been avoided, or at least the damage mitigated to a certain extent, if there had been a shareholders' agreement put in place at the time the company was incorporated.
Shareholder agreements usually include
A shareholder agreement is like a business pre-nuptial agreement. It sets out the basis of the relationship between the shareholders and can include matters such as:
- Defining the type of business the company will engage in;
- How the business will be managed and who will be responsible for particular areas of management such as staff employment etc;
- What types of decisions can be made by individuals alone and what types need majority or unanimous agreement;
- How any of the parties leaving the business will be handled - what happens to their shares etc;
- How any disagreements or disputes that arise will be handled.
It can contain confidential information as, unlike a company's constitution, it does not have to be filed with the Registrar of Companies and be available for public viewing.
Shareholder agreements may also include
They may also cover:
- Non-competition restrictions;
- Appointment and retirement of directors;
- Professional indemnity insurance;
- Transfer of shares and pre-emptive rights;
- Disability and insurance - what happens in the case of a trauma or death to insurance proceeds - does it pay company debts or does it go to the estate? Who is the policy owner?
- Shareholder approvals, consent and voting.
The complexity and size of the shareholders' agreement will depend to a certain extent on the size of the business, the number of shareholders involved and the areas to be covered.
It will be different for every company and shareholders should seek proper legal advice when putting together any such agreement and before signing one.
How McDonald Vague can help
We regularly see the result of fallouts between company directors and shareholders. We would advise all company directors and shareholders to put together a Shareholder Agreement at the time the company is incorporated to avoid prolonged and unnecessary expense to shareholders and their creditors.
If your relationship with fellow director(s) and/or shareholder(s) is breaking down contact us for free and confidential advice to find out how we can help.
Alternatively, download our Free Guide to Avoiding Business Failure