Growth
Shareholders' Agreement (SHA) Explained: Key Terms and Benefits
Written by
Lineke Kruisinga
Published on
January 11, 2025
Written by
Published on
A shareholders' agreement (SHA) might not be the first thing on your mind when starting a business, but it’s one of the smartest steps you can take. This agreement is a contract between the company’s shareholders, typically created at the time of formation. Whether you’re laying the groundwork for growth or protecting against future disputes, a well-drafted shareholders' agreement keeps things fair and transparent from day one.
A shareholders' agreement is a deal between shareholders that outlines how a company will be run, as well as the rights and responsibilities of each shareholder. It also covers important details about the company’s management, along with the protection and benefits shareholders receive. This agreement helps ensure everything runs smoothly and everyone knows where they stand.
A shareholders' agreement helps ensure fairness among shareholders and protects their rights. It covers key areas like how shares are priced, especially when sold, and who can become a shareholder in the future. It also includes safeguards for minority shareholders to prevent them from being overlooked.
Key elements often found in a shareholders' agreement include the date, the total number of shares issued, a cap table showing ownership percentages, restrictions on transferring shares, and pre-emptive rights that let existing shareholders buy new shares to maintain their stake. It may also outline what happens during a company sale.
Unlike company bylaws, which are legal requirements for running the business, a shareholders' agreement is optional. It’s designed specifically for shareholders, focusing on their rights and responsibilities. This is especially useful for companies with a small group of active shareholders, providing clarity and preventing disputes.
When launching a startup, founders often create a shareholders' agreement to clarify the roles and expectations of everyone involved from the start. This agreement acts as a guide if disputes arise as the company grows and evolves, providing a clear reference point for resolving conflicts.
A typical startup shareholders' agreement includes:
It’s always smart to create a shareholders' agreement (SHA) when starting your business, but you can draft one at any time. A SHA sets out clear guidelines for how shareholders interact with the company and each other. Here are some key areas it covers:
1. Ownership, Rights, and Obligations
The SHA lists all shareholders, their shareholdings, and their rights. These might include voting rights, dividend policies, capital rights, and limited liability. It also outlines how shareholders can access important company information.
2. Decision-Making
In many companies, directors handle day-to-day decisions without shareholder input. If this creates tension, a SHA can limit directors' powers, giving shareholders more control over major decisions.
3. Issuing and Transferring Shares
A SHA often includes rules about issuing or transferring shares. This helps protect the company and its shareholders, particularly minority investors, by preventing unwanted ownership changes.
4. Dispute Resolution
Conflicts happen. A SHA can include a clear process for resolving disputes, ensuring disagreements don’t escalate and harm the business.
5. Exit Clauses
If a shareholder leaves, exit clauses provide a clear plan for transferring shares. This makes transitions smoother and avoids costly complications.
6. Restrictive Covenants
To protect the company, these clauses prevent shareholders from competing with the business, stealing clients, or poaching employees while they’re still members.
Creating a shareholders' agreement doesn’t have to be complicated, but it’s important to get it right. Here are a few ways to get started:
No one starts a business expecting problems, but challenges can arise and sometimes lead to failure. Putting a shareholders' agreement in place early allows you to focus on growing your business with peace of mind.
When starting out, always expect the best but plan for the worst. It’s a small step that can make a big difference.
Step 1: Decide What the Agreement Should Cover
Start by identifying key areas the agreement needs to address. Think about ownership, decision-making, share transfers, conflict resolution, and exits. For example, if some shareholders are also directors, outline how salaries and dividends are decided to avoid power imbalances. Address scenarios like transferring shares after a shareholder’s death or setting boundaries on competition to protect the business.
Step 2: Identify Shareholder Interests
Shareholders invest for different reasons—financial returns, strategic influence, or maintaining business relationships. Understand their priorities to balance interests and include safeguards for minority shareholders. This step ensures the agreement aligns with everyone’s goals.
Step 3: Protect Shareholder Value
Determine how the company’s value is defined and protected. Intellectual property often holds hidden value, so specify how it’s managed. For example, protect trademarks, trade secrets, or methods unique to your business.
Step 4: Clarify Decision-Making Roles
Define who has the authority to make decisions—shareholders, directors, or both. For directors who are also shareholders, outline what decisions they can make in each role and ensure transparency to avoid conflicts of interest. Reserved matters, or decisions requiring shareholder approval, can help create clear boundaries.
Step 5: Decide on Voting Power
Set the rules for how votes are counted. While one share usually equals one vote, you can customize this to reflect contributions or ensure balanced decision-making. Clearly define what constitutes a majority and when unanimous agreement is required.
A shareholders' agreement is more than just a legal document—it's a vital tool for ensuring your business runs smoothly and fairly. From clarifying shareholder roles to protecting minority interests and resolving disputes, it creates a framework that helps you navigate challenges as your company grows.
Whether you're starting a new business or formalizing relationships in an existing one, a well-crafted SHA provides clarity, reduces conflict, and safeguards your company’s future. By addressing key areas like ownership, decision-making, and exits upfront, you can focus on building your business with confidence and peace of mind.
Also read:
➡️Why Your Startup Needs a Lawyer: A Guide for Early-Stage Founders
➡️The Most Common Contract Clauses : What You Need to Know
➡️How to Use Data Rooms for Efficient and Secure M&A Transactions
What Clauses Are Typically Included in a Shareholders' Agreement?
A shareholders' agreement (SHA) usually contains essential clauses that outline the company’s ownership structure, decision-making processes, and how disputes will be handled. It also includes measures to protect shareholder rights and the company itself, such as confidentiality requirements and restrictions for shareholders leaving the business. Additional clauses often found in a SHA include: - Pre-emption Rights: Giving existing shareholders the first option to buy new or transferred shares. - Permitted Transfers: Defining who can receive shares and under what conditions. - Share Valuation: Outlining how shares will be valued in different scenarios. - Tag-Along and Drag-Along Rights: Protecting minority shareholders in the event of a sale or requiring them to sell shares under certain conditions.
How Does a Shareholders' Agreement (SHA) Affect the Company’s Articles of Association?
Articles of association are public documents outlining a company’s internal rules, like its purpose, share structure, and decision-making processes. A shareholders' agreement (SHA), however, is a private contract between shareholders that defines their rights and responsibilities. While these documents are separate, they often overlap. To avoid conflicts, a SHA typically includes a clause stating it will take precedence over the articles if inconsistencies arise. This ensures clarity and consistency for the company and its shareholders.
Is a Shareholders' Agreement (SHA) Legally Binding, and How Is It Signed?
Yes, a shareholders' agreement (SHA) is a legally binding contract between a company and its shareholders. SHAs are often signed as deeds to ensure their enforceability. To be valid, deeds must be signed: - By individuals, with a witness present. - By companies, either by one director with a witness or by two directors. Using a reliable template, like Docue’s example, can help you quickly create a legally binding SHA that meets all legal requirements.
Can a Shareholders' Agreement (SHA) Be Amended or Changed?
Yes, a shareholders' agreement (SHA) can be updated as needed. There are two common ways to make changes: 1. Deed of Adherence When new shareholders join, a deed of adherence is used to add them to the existing SHA. This legal document ensures the new shareholder agrees to the same terms as the original parties without needing to create a brand-new SHA. It’s signed by the new shareholder and keeps things consistent as your company grows. 2. Deed of Variation If you need to change the SHA itself, a deed of variation is the way to go. This document outlines the specific changes and must be signed by all existing shareholders to confirm their agreement.
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