the importance of a shareholders' agreement for your company, also under the new company law

Agreements between shareholders come in many shapes and sizes. A shareholders' agreement is a frequently used and very useful instrument for giving shape to these agreements. Read below what a shareholders' agreement can mean for you.

WHAT IS A SHAREHOLDERS AGREEMENT?

A shareholders' agreement has no fixed pattern. Shareholders have the greatest possible freedom – subject to a number of legal restrictions – to make mutual agreements. The shareholders' agreement will usually describe the general framework of the cooperation, but will also contain specific provisions regarding the operation and management of the company, the transferability of the shares, the manner of exercising the voting right, the distribution of profits, the prevention of and resolving disputes between the directors or between the shareholders, and the like.

The scope of the shareholders' agreement is entirely determined by the shareholders concerned. A shareholders' agreement can be comprehensive, but can also only describe a limited number of specific agreements.

WHAT AGREEMENTS ARE USEFUL FOR MY BUSINESS?

The drafting of a shareholders' agreement is tailor-made and requires an analysis of the different interests of the shareholders and the company itself. The relevance of certain frequently occurring clauses depends, for example, on the legal form of your company and the relationship between the shareholders.

In a public limited company, the shares are by definition freely transferable. It may be useful to contractually limit the transferability of the shares between shareholders. For example, a shareholder may wish to avoid that his co-shareholder transfers shares to an unknown third party. This can be avoided by subjecting such transfer to the approval of the other shareholders and/or by requiring the transferor to offer these shares to them first.

The reverse applies in private limited companies (such as the bvba): in principle, the shares are not transferable, but the shareholders can allow a limited transferability of the shares to specifically designated persons.

The relationship between the shareholders also plays a role in the drafting of the shareholders' agreement. In companies in which more than half of the shares are owned by a single shareholder, there are various techniques for protecting the minority shareholder.

For example, the directors are always appointed by the general meeting, and thus de facto by the majority shareholder. A shareholders' agreement may grant one or more shareholders the right to appoint or have a director appointed.

The law also allows to deviate from the principle that the board of directors decides collectively and that each director has one vote. For example, special majorities or even veto rights can be included in the shareholders' agreement for important decisions, such as for major investments or the formulation of general policy.

But a majority shareholder can also be protected under a shareholders' agreement. For example, a follow-up clause can be provided whereby the minority shareholder is obliged to sell his shares if the majority shareholder so requests. This prevents a buyer who is only interested in the entire company from dropping out because of the presence of a minority shareholder.

Even if you work with one or more shareholders in an equal proportion (50% – 50%), the above mechanisms remain useful. In addition, in the latter case, it is all the more important to provide a technique to counteract deadlocks in the board of directors or between shareholders. A casting vote or an option scheme are just a few examples of clauses that can remove a blocking situation.

If you entered a company because of the special expertise of a co-shareholder or because of the personal nature of the cooperation, it can be foreseen that the shares of one or more shareholders cannot be transferred during a certain period. In this way you can be sure that specific shareholders will remain on board for a certain period of time.

In short, a good shareholders' agreement anticipates all possible concerns of shareholders in the specific context of the company.

MY COMPANY ARTICLES ALREADY CONTAIN SHAREHOLDER AGREEMENTS. IS A SHAREHOLDERS AGREEMENT STILL BENEFICIAL?

Of course. Contrary to the articles of association, agreements in a shareholders' agreement can, for example, be limited in time or concluded between some shareholders, to the exclusion of the others (such as between a specific shareholder group).

As a minority shareholder, a shareholders' agreement also offers you the comfort that the agreements made cannot be changed without your permission. An amendment to the articles of association, on the other hand, only requires a three-fourths majority of the votes.

An additional advantage of a shareholders' agreement is discretion. Certain clauses, such as options to buy and sell shares, planned projects or (financial) sanctions for violating agreements, are usually not shared with third parties. You can therefore choose to include these agreements in a shareholders' agreement, and not in the articles of association.

Shareholder agreements do not need to be published. Nevertheless, it is highly recommended to avoid conflicts between the shareholders' agreement and the articles of association.

DOES A SHAREHOLDERS AGREEMENT STILL HAVE INTEREST UNDER THE NEW COMPANY LAW?

Even under the newly voted new company law, which will come into effect on 1 May 2019, the importance of shareholders' agreements for your company remains high.

Flexibility in company law is one of the fundamental pillars of the reform. The introduction of multiple voting rights and the principle of the transferability of shares in most company forms, among other things, give shareholders extensive options for contractually defining the framework of their cooperation with complete freedom. The more flexible entry and exit of shareholders also broadens the freedom of choice to resolve disputes within the company. Shareholders' agreements therefore play an important role in this.

Are you considering concluding a shareholders' agreement in your company? We are happy to work out a custom design for your company (info@vsadvocaten.be)

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