No two companies are the same, therefore, no two shareholders agreement should be either. Lawyer Catherine Tan provides some useful tips for entering into a shareholder agreement in this Mandarin Guide.
To most people, entering into a joint venture or investing in a company is a decision based upon hopes, wishes and uncertainty. No one can really predict the future, exactly how profitable the new business will be, or the ever-changing market.
There are certainly a lot of success stories about joint ventures. However, in my profession, I have come across a lot of failed joint ventures with unhappy endings.
This article sets out a few matters for shareholders to consider when entering into a joint venture or purchasing shares of a company:
- 角色和立场 Roles of the parties
一个小公司里存在一些不同的角色：股东，董事，员工。在很多情况下，投资人不只是股东，也许还是董事或者员工。在一开始的时候把角色理清楚非常重要，因为，这些不同的角色都存在不同的竞争利益关系。In a small start-up company, the investor would typically have the role of not just a co-owner (shareholder) but also a director and an employee. It is important to identify the roles played by an investor at the outset, as each of the roles can have competing interests and rewards.
- 股份分配 Shareholders contribution
通常股份都是按照入注的资金比例来分配。但是，有些情况下，某些公司也可能因为一些股东带来的知识产权或者其他服务来分配一些股份。A shareholder's contribution is typically measured by way of funding provided to the company. However, in some circumstances, shares may also be given due to other contributions such as the sharing of intellectual property or other services.
- 董事的薪酬Director's remuneration
很多情况下，因为是新成立的公司，股东也是董事，而董事的薪酬都比一般市场薪水更低一些。It is quite common to see that one of the shareholders is also the director of the company. In this case, the director may receive a remuneration. Typically in start-ups, the remuneration received by the director (who is also a shareholder) is relatively meager.
- 增加新股 Issuing new shares
考量在什么情况下可以增加新股份。增加股份就表示现有股东的股份被稀释. Consider the circumstances where the issuing of new shares will be approved and the approval process. The issuing of new shares inevitably means the dilution of the current shareholding.
考虑公司在什么情况下会分红：每个季度？还是当利润达到某个额度的时候。有些股东也许会想要把利润继续投入生意里，扩展生意。其他股东或许会希望短期内可以回本。Consider how frequently a dividend is distributed. Some shareholders may favour the retention of profit within the company to allow further investments to be made to grow or expand the business. Others may favour the frequent payment of dividends so that they can recover the funds invested in the company.
- 股份转让/ 退股Selling of shares
考虑股份转让的政策：公司里其他的股东是否有权有限决定是否要购买退股人的股份？如何估算股份的价格？是否需要明文规定股份不得转卖给外人或者竞争对手？Consider whether to allow pre-emptive rights for existing shareholders to buy the outgoing shareholder's shares before the shares are offered to the public at large. In some circumstances, the company may also impose a restriction on selling the shares to the public or to another entity with a competing business. Often valuing the shares can be tricky and can often be the subject of a dispute.
- 决定权Decision making
董事会可以做什么样的决定？哪些决定需要通过股东的允许？投票的时候应该要少数服从多数？还是某些决定只有股东们一致通过才能生效？What decisions can be made by the director and what decisions must be made by the shareholders? How are decisions made? Is there a requirement that there be a unanimous decision (100%)? Or would a majority vote (over 50%) suffice?
- 争议解决方案 Deadlocks and disputes
当有争议的时候，如何有效作出决定？当有僵局的时候，董事是否可增加一票？How does the company resolve disputes and deadlocks? Does the chairman get a second or casting vote?
- 召集会议的权利Right to call a shareholders' meeting
因为会议可能消耗时间和资源，公司需要考虑是否持有任何股份的股东都有权利可以召集股东会议。Having a shareholders' meeting can have cost implications and can be time consuming. The company should consider whether any shareholders (with given percentage of shares) should have the right to call a shareholders' meeting.
- 股东获得商务信息的权利和频率Rights to access to information and frequency
考虑股东多常可以要求公司提供商业文件和财务报告。在澳大利亚的公司法下，公司有义务在股东要求之后给予 股东一些关于公司的商业和财务报告。It is important to discuss the level of financial information available to the shareholders upon request, and the frequency of the request. Under the Corporations Act, shareholders have the right to request certain financial information and reports of the company.
When entering into a joint venture by way of purchasing shares in a company, it is important that you speak to a lawyer to prepare a shareholders' agreement. This agreement should reflect exactly how you envisage the company being managed.
No two companies are the same, therefore, no two shareholders agreement should be either.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.