We are specialists for drawing up both the settlement agreement on cessation of employment and the share transfer documentation.
Shares held by any leaver cannot be compulsorily acquired unless the articles and or shareholder agreement provides for this. This rule applies to any shareholder leaving for any reason. If a company has only adopted standard articles it will not be able to force the transfer of shares and the leaver remains a shareholder.
Drawing on our experience of advising private companies and their shareholders over many years we explain what can be achieved to avoid an aggrieved shareholder who is no longer actively in the business retaining his or her shares.
Let’s begin by considering what trouble can be caused by failing to deal with this issue.
Shareholders, divorced from a company’s daily work create an administrative burden. These shareholders must be included in any shareholder meeting. Potentially, depending on percentage of shares held, such shareholders could block any vote requiring 75% approval, i.e. a special resolution. Ex-employee shareholders can paralyse company decision making process. They might even block a company sale.
There are a number of potential ways to avoid problems where a hostile shareholder could try to create problems by retaining shares. These include :
Amending the articles
With sufficient shareholder approval it may be possible to amend the articles to bring in compulsory transfer provisions. The ability to amend does depend upon the views of at least 75% of shareholders voting to amend the articles. If the leaver has a sizeable shareholding and support from other shareholders this may not be possible.
Changing rights attached to shares
Share rights for founders or investors can be different from the share rights for others. For example, good and bad leaver provisions do not have to apply equally to all shareholders. Other rights which can be included or excluded include the right to dividend, the rate of dividend paid, voting rights and rights to capital.
Good and bad leaver clauses
Many companies amend their standard articles to incorporate compulsory transfer provisions. They often impose different rules depending upon whether the leaver is deemed a “good leaver” or a “bad leaver”.
Good leaver provisions
Good leaver provisions could cover where the employee or director ceases to be employed because of:
- Ill health;
- Resignation after a certain number of years of service.
Recommendation – set out a definition of good leavers
We recommended the Shareholders Agreement sets out the definition of good leavers and deals with who is a bad leaver. The benefit of being a good leaver is that the ex-employee or director gets preferential treatment over bad leavers. Often good leaver shareholders are required to sell their shares on termination of employment but at “fair value”. We have set out some ideas for how to deal with fair value below.
“Bad leavers” are typically those who:
- Breach the terms of their service or shareholders’ agreement;
- Resign after a short period of employment.
The idea is a bad leaver does not receive fair value on termination of employment or directorship. Instead, bad leaver shareholders often must sell their shares to the company at the higher of:
- Par value, i.e. the share’s face value;
- The price paid for the shares.
Employers can reserve the right to decide whether an ex-employee or ex-director is a good or bad leaver.
Express rights for company to buy back and cancel shares
What if the company or remaining shareholders lack the cash to purchase the shares at the time that an employee or director leaves?
A good shareholders agreement is likely to include the flexibility for the remaining shareholders to elect to:
- Permit the company to buy back and cancel the shares if it has distributable reserves; or
- Allow the leaver to continue holding the shares until either the company or shareholders are able to fund the purchase; and in the meantime;
- Remove voting, dividend and veto rights.
You need to make sure that the leaving director or employee cannot block any business decisions until the company finds sufficient funds to buy them out.
For listed companies, by definition, there is a market price for the shares. For private company shares there is no market price. Often the shareholder’s agreement will outline a solution, to avoid costly disputes.
How to determine fair value?
In practice it is difficult to pre-determine the fair value of the shares at the date of award base on some unknown point of transfer in the future. The most common solution is therefore to pre-determine who decides an appropriate share price, if the shares are bought out. That person could be:
1. The company’s existing accountant;
2. A third party independent accountant, if a shareholder feels the company accountant might be biased; or
3. If the parties still don’t agree, then the Institute of Chartered Accountants of England & Wales.
How is fair value calculated
Many shareholders’ agreements are prescriptive and set out the valuation formula to be adopted in dealing with a good leaver’s shares. Typical approaches include asset based valuations or EBITDA and often a combination of both. Depending upon the business, specific add backs and deductions can be specified.
Co-ordinate the share transfer documentation with signing the settlement agreement
If the company has not adopted articles and or a shareholders agreement which enables the compulsory transfer of shares a practical solution is to secure consent for the transfer of shares at the same time as any settlement agreement is entered into.
Before joining Gannons I was employed as part of the in-house team at one of their clients. I have been the recipient of legal advice as a client which has given me a valuable insight in how to deliver solutions for the firm’s clients now I am on the other side.