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JGM
JGM, Solicitor
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There, i have a shareholders agreement with my current employer.

Resolved Question:

Hi there, i have a shareholders agreement with my current employer. I have 3% of the company at present and this raises to 5% after 3 years. This agreement was signed in Dec 2013. I have the following Good Leaver \ Bad Leaver clause in my agreement:
(d) the Sale Price for the Leaver’s Shares shall be:
(i) in the case of a Good Leaver, the Fair Price; and
(ii) in the case of a Bad Leaver; the lower of the Purchase Price of the shares and the Fair Price
(e) in relation to the Fair Price, the Leaver and the Company shall have 10 days after the Leaving Date or (if later) the date on which all the Directors become aware of the fact that the Leaver is a Leaver, in which to agree the Fair Price before the matter is referred to a Valuer;
(f) if a Leaver is a Bad Leaver, any other person who becomes a Leaver as a consequence shall also be deemed to be a Bad Leaver.
If I left the company then i would be deemed a bad leaver and this means i would get a fair price or purchase price for my shares (which ever is lower). My question is that because i was given the shares for the effort and dedication i showed to the company, i do not have a purchase price. I am worried that if I ever left that I would come out with nothing.
Also we could be selling 20-30% of the company in the next year. how would this effect my shareholders agreement. would this be grounds to renegotiatie this current agreement.
Submitted: 2 years ago.
Category: Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
Please let me have the exact definitions of Purchase Price, Good Leaver and Bad leaver as specified in the agreement.
Customer: replied 2 years ago.

Hi There,

See agreement below:

SHAREHOLDERS’ AGREEMENT

BETWEEN

PARTIES

1. MURRAY KERR,***** Ellon, Aberdeenshire AB41 8AT;

2. CHRIS WALLER,***** Fraserburgh, Aberdeenshire, AB43 7AF

and

3. SENGS SUBSEA ENGINEERING SOLUTIONS LIMITED Registered office Braeleys Kininmonth, Mintlaw, Peterhead, Aberdeenshire, Scotland, AB42 4HT

RECITALS

(A) SENGS SUBSEA ENGINEERING SOLUTIONS LIMITED is a private company limited by shares incorporated and registered in Scotland with company number SC425789 on 8th June 2012 with registered office at Braeleys Kininmonth, Mintlaw, Peterhead, Aberdeenshire, Scotland, AB42 4HT. The Company has an authorised share capital of £206, divided into 200 A ordinary shares, issued and fully paid, of £1.00 each, and 6 B ordinary shares of £1.00 each, currently unallocated.

(B) MURRAY KERR is the sole director and registered holder of all of the A ordinary shares of £1.00 each in the capital of the Company, and no B ordinary shares have been issued or allotted to any person.

(C) The Company has agreed to allot 6 A ordinary shares of £1.00 each (fully paid) to CHRIS WALLER conditional on the said CHRIS WALLER inter alia entering into this Shareholders’ Agreement.

(D) In the event that the said CHRIS WALLER becomes an employee and remains so for three years, MURRAY KERR has agreed that he shall procure that the Company shall issue to the members further A Ordinary shares such that CHRIS WALLER shall be the holder of 5% of the fully-paid participating A ordinary share capital in the Company.

(E) MURRAY KERR and CHRIS WALLER have agreed to enter into this Agreement for the purposes of controlling their capacity as shareholders of the Company.

AGREED TERMS

1. Interpretation

In this agreement:

Board means the Board of Directors for the time being of the Company.

Business means the business of the Company as described in clause 2(1) and such other business as the parties may agree from time to time in writing should be carried on by the Company.

Director means any director for the time being of the Company including where applicable any alternate director.

Equity share capital shall have the meaning set out in section 548 of the Companies Act 2006

Leaver means any Shareholder who:

(a) dies

(b) has a bankruptcy order made against him; or

(c) otherwise ceases to be an Employee

Leaver’s Shares means all of the Shares held by a Leaver, or to which that Leaver is entitled, on the Leaving Date and any Shares acquired by that Leaver after the Leaving Date

Leaving Date means, in relation to any Leaver, the date on which he becomes a Leaver (which, in the case of any Leaver who becomes a Leaver by virtue of any person ceasing to be an Employee, shall be the Termination Date in relation to that Employee)

Person includes any firm or corporation.

Shareholders means MURRAY KERR and CHRIS WALLER or any person, body or company to whom they may properly transfer their shares pursuant to the provisions of this agreement.

Shares means shares in the capital of the Company.

Subsidiary and holding company shall have the meanings ascribed to such expressions by section 1159 of the Companies Act 2006

2. Business of the Company

(1) The primary object of the Company is the carrying on of the business of the provision of decommissioning project services to the oil, gas and other industrial sectors of industry, both onshore and offshore.

(2) The business is conducted in the best interests of the Company on sound commercial profit-making principles so as to generate the maximum achievable maintainable profits available for distribution.

3. Completion

Forthwith or as soon as practicable after executing this Agreement, the directors shall approve and register CHRIS WALLER as a shareholder in the Company.

4. Conduct of the company’s affairs

(1) The Shareholders shall exercise all voting rights and other power of control available to them in relation to the Company so as to procure (in so far as they are able by the exercise of such rights and powers) that the Company shall not without the prior written approval of each Shareholder holding at least 20% of the A ordinary share capital in the Company:

(a) sell, transfer, lease, assign or otherwise dispose of a material part of the undertaking, property and/or assets of the Company (or any interest therein), or contract so to do whether or not for valuable consideration;

(b) do or permit or suffer to be done any act or thing that may cause the Company to be wound up (whether voluntarily or compulsorily), save as otherwise expressly provided for in this agreement or unless the Company is insolvent;

(c) enter into any contract or transaction except in the ordinary and proper course of business;

(d) hold any Shareholders’ meeting or purport to transact business at such a meeting without duly authorised representatives or proxies of each Shareholder being present’

(e) amend the Company’s articles of association’

(f) alter any rights or restrictions attaching to any class of share in the capital of the Company;

(g) alter the Company’s authorised or issued share capital or create any new shares or securities;

(h) change the Company’s name;

(i) make a substantial change to the nature of the business of the Company or the manner in which it is conducted;

(j) appoint or reappoint the Company’s auditors/accountants, solicitors or bankers

5. Mandatory transfers in respect of Leavers

(1) Any person who becomes a Leaver shall immediately give the Company notice in Writing detailing the relevant circumstances.

(2) Any Leaver shall (unless the Directors resolve otherwise) be deemed to have served a Transfer Notice on the Leaving Date in respect of the Leaver’s Shares and the provisions of Articles 26A and 26B of the Articles of Association for the Company shall apply except that:

(a) the Vendor shall be the Leaver;

(b) the Offered Shares shall be the Leaver’s Shares;

(c) the Transfer Notice date shall be the Leaving Date;

(d) the Sale Price for the Leaver’s Shares shall be:

(i) in the case of a Good Leaver, the Fair Price; and

(ii) in the case of a Bad Leaver; the lower of the Purchase Price of the shares and the Fair Price

(e) in relation to the Fair Price, the Leaver and the Company shall have 10 days after the Leaving Date or (if later) the date on which all the Directors become aware of the fact that the Leaver is a Leaver, in which to agree the Fair Price before the matter is referred to a Valuer;

(f) if a Leaver is a Bad Leaver, any other person who becomes a Leaver as a consequence shall also be deemed to be a Bad Leaver.

6. Drag along

(1) If the Shareholder Majority want to transfer all their Shares (the “Relevant Shares”) on arms length terms and in good faith to a Third party Purchaser they shall have the option (the “Drag Option”) to require the other Shareholders (the “Dragged Shareholders”) to transfer all their Shares (the “Dragged Shares”) to the Third Party Purchaser in accordance with this clause 6.

(2) To exercise the Drag Option the Shareholder Majority shall give an irrevocable notice in Writing (the “Drag Notice”) to the Dragged Shareholders. The Drag Notice shall specify:

(a) that the Dragged Shareholders are required to transfer their Dragged Shares to the Third Party Purchaser;

(b) the price receivable by the Shareholder Majority for the Relevant Shares (including details of any non-cash consideration (“Non-Cash Consideration”) receivable by the Shareholder Majority (or any of them) which, having regard to the substance of the transaction as a whole, can reasonably be regarded as an addition to the price paid or payable for the Relevant Shares (or any of them));

(c) the price the Dragged Shareholders will receive for each Dragged Share (the “Drag Price”) and details of how that price has been calculated;

(d) the name of the Third Party Purchaser; and

(e) the proposed date for completion of the transfer of the Relevant Shares and the Dragged Shares (which shall be at least seven days after the date of the Drag Notice).

(3) The Drag Price shall be equal to the price per Relevant Share receivable by the Shareholder Majority (including the cash equivalent of any Non-Cash Consideration). Any dispute about the calculation of the Drag Price shall immediately be referred to a Valuer (whose decision shall, in the absence of manifest error, be final and binding) and pending its determination neither the Relevant Shares nor the Dragged Shares shall be transferred to the Third Party Purchaser.

(4) Unless the Shareholder Majority and the Dragged Shareholders agree otherwise, the transfer of the Relevant Shares and the Dragged Shares (including payment of the consideration) shall take place on the same day.

(5) The Company is unconditionally and irrevocably authorised to appoint any person as agent of each Dragged Shareholder to execute the required Transfer Forms for the Dragged Shares in the name and on behalf of that Dragged Shareholder and to do such other things as are necessary to transfer the Dragged Shares pursuant to this clause 6.

(6) The provisions of this clause 6 shall prevail over any contrary provisions of the Agreement or the Articles of Association. Any Transfer Notice or deemed Transfer Notice served in respect of any Shares shall automatically be revoked by the service of a Drag Notice.

7. Tag along

(1) A Shareholder (the “Committed Shareholder”) may not transfer any Shares (the “Controlling Shares”) to any person (the “Proposed Controller”) if it would result in the Proposed Controller (together with his Connected Persons and any persons Acting in Concert with him (together the “Interested Shareholders”)) obtaining or increasing a Controlling Interest unless before that transfer is made the Proposed Controller has made a bona fide offer (the “Tag Offer”) to the Shareholders (other than the Proposed Controller, the Committed Shareholder and the Interested Shareholders) (the “Uncommitted Shareholders”) in accordance with this clause to purchase all their Shares (including any Shares which may be allotted to any of them pursuant to the exercise or conversion of options or the rights to subscribe for or securities convertible into Shares, in existence at the date of the Tag Notice) (the “Uncommitted Shares”).

(2) The Tag Offer shall be made by notice in Writing (the “Tag Notice”) and shall specify:

(a) the price the Uncommitted Shareholders will receive for each uncommitted Share (the “Tag Price”) and details of how that price has been calculated; and

(b) the date (the “Close Date”) by which each Uncommitted Shareholder must accept the Tag Offer (which shall be at least 21 days after the date of the Tag Notice).

(3) Any Uncommitted Shareholder who has not accepted the Tag Offer by the Close Date shall be deemed to have rejected the Tag Offer.

(4) The Tag Price shall be equal to the highest price paid or payable by the Proposed Controller (or any Interested Shareholder) for any Share (including the cash equivalent of any non-cash consideration paid or payable which, having regard to the substance of the transaction as a whole, can reasonably be regarded as an addition to the price paid or payable for that Share.) Any dispute about the calculation of the Tag Price shall be immediately referred to a Valuer (whose decision shall, in the absence of manifest error, be final and binding) and pending its determination the Controlling Shares shall not be transferred to the Proposed Controller.

(5) Each accepted Tag Offer shall be completed and the consideration in respect of it paid (except insofar as failure to complete is due to the fault of the relevant Uncommitted Shareholder) before any of the Controlling Shares are transferred to the Proposed Controller).

(6) For the purpose of this clause the expression “transfer” shall include the renunciation of a renounceable letter of allotment.

8. Compliance with transfer provisions

(1) For the purpose of ensuring compliance with the provisions of clauses 5, 6 and 7, the Directors may require any Leaver or Shareholder to procure (to the extent he is able) that:

(a) he;

(b) any proposed transferee of any Shares; or

(c) such other person as is reasonably believed to have information and/or evidence relevant to that purpose;

provides to the Directors any information and/or evidence relevant to that purpose and until that information and/or evidence is provided the Directors shall refuse to register any relevant transfer of Shares (except with Shareholder Consent).

(2) Each Shareholder unconditionally and irrevocably authorises the Company to appoint any person as his agent to give effect to the provisions of this clause 8.

9. Issue of shares

The allotment and issue of new shares shall be regulated in accordance with the provisions set out in the Company’s articles of association.

10. Duration of agreement

(1) This agreement shall continue until the first of the following dates:

(a) the date on which the Business ceases to be carried on by the Company

(b) the date on which a resolution is passed for the winding-up of the Company; or

(c) a date mutually agreed by all parties to the agreement.

(2) Despite the expiration, determination or termination of this agreement, it shall continue to bind the Shareholders to such extent and for so long as may be necessary to give effect to the rights and obligations embodied in it.

11. This agreement not to constitute a partnership

None of the provisions of this agreement shall be deemed to constitute a partnership between the Shareholders. Neither are they agents of each other and none of them shall have any authority to bind the others in any way.

12. Successors and assigns

This agreement shall ensure for the benefit of and be binding on the respective successors in title and permitted assigns of each Shareholder who shall procure in transferring any of his or her or its shares in the Company that each such transferee shall execute a deed with the other shareholder by which the transferee agrees to be bound by the terms identical, mutatis mutandis, to the terms of this agreement (including the terms of this clause as regards ***** ***** transfer of the shares).

13. Waiver, forbearance and variation

(1) The rights of the parties shall not be prejudiced or restricted by any indulgence or forbearance extended to one party by the others and no waiver by any party in respect of any breach shall operate as a waiver in respect of any subsequent breach.

(2) This agreement shall not be varied or cancelled, unless such variation or cancellation shall be expressly agreed in writing by each party or a duly authorised representative of each party.

14. General matters

(1) This agreement supersedes any previous agreement between the parties in relation to the matters dealt with herein and represents the entire understanding between the parties in relation thereto.

(2) References to any statute or statutory provisions include a reference to that statute or statutory provisions as from time to time amended, extended or re-enacted.

(3) Words denoting the singular number only shall include the plural and vice versa.

(4) Unless the context otherwise requires, reference to any clause or schedule is to a clause or schedule of or to this agreement.

(5) The headings in this agreement are inserted for convenience only and shall not affect the construction hereof.

15. The terms of this agreement to prevail

This agreement supersedes any previous agreement between the parties in relation to the matters dealt with herein and represents the entire understanding between the parties in relation thereto.

16. Notices

(1) Any notice to be given under this agreement shall be in writing and shall be delivered personally, transmitted by fax, or sent by pre-paid first class post (airmail if overseas) or recorded delivery post. The address for service of each Shareholder shall be in the case of a person his or her address stated above or any other address for service notified to the other Shareholders or (in the absence of any such notification) his or her last known place of residence and in the case of a limited company its registered office. A notice shall be deemed to have been served as follows:

(a) if personally delivered at the time of delivery

(b) if posted, at the expiration of 48 hours or (in the case of airmail) 7 days after the envelope containing the same was delivered into the custody of the postal authorities; and

(c) if sent by fax at the time of transmission.

(2) In providing such service it shall be sufficient to prove that personal delivery was made, or that the envelope containing such notice was properly addressed and delivered into the custody office of the postal authority as a prepaid first class, by airmail or recorded delivery letter (as appropriate) or that the fax was transmitted as the case may be.

17. Severability

(1) If any provision of the agreement is found by a court, an arbitrator or other competent authority to be void, unenforceable or illegal, such a provision shall be deemed to be deleted from this agreement and the remaining provisions of this agreement shall continue to full force and effect. Notwithstanding the foregoing the Shareholders shall thereupon negotiate in good faith in order to agree the terms of mutually satisfactory provisions to be substituted for the provisions so found to be void or unenforceable.

(2) If any void, unenforceable or illegal provision would be valid, enforceable and legal if part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

18. Governing Law

(1) The validity, performance and extent of this agreement (together with any dispute or claim (contractual or otherwise) arising out of or in connection with it) shall be governed by and construed in accordance with Scots law.

(2) The Parties submit to the exclusive jurisdiction of the courts of Scotland in relation to any dispute or claim (contractual or otherwise) arising out of or in connection with this agreement.

IN WITNESS WHEREOF these presents are subscribed as follows

At_________________________________ ________________________

Date _______________________________

in the presence of

Witness Signature ____________________

Full Name __________________________

Address ____________________________

___________________________

Expert:  JGM replied 2 years ago.
Thank you but where do I find the definition of the terms Purchase Price, Good Leaver and Bad Leaver?
Customer: replied 2 years ago.

Hi There,

this was never shown or given to me. this is the only document that i have.

chris

Expert:  JGM replied 2 years ago.
OK.
Your original narrative you said you would be deemed a Bad Leaver. Where are you getting that from?
Customer: replied 2 years ago.

just from what i have read on the internet. i thought that anything other than leaving for ill health, or dying is classified as being a bad leaver.

Does bad leaver need to be defined for an individual agreement?

Expert:  JGM replied 2 years ago.
No, if the term isn't properly defined in the agreement in which the term appears and the normal use of language doesn't help then it has to be interpreted in a way which is "contra preferentem" which means against the party trying to rely on the term.
You said that you would be a bad leaver in your initial narrative. The term Leaver is defined in the Agreement. Good Leaver and Bad Leaver are not. I suggest that these terms cannot be "invented". It is also the case that Fair Price and Purchase Price aren't defined either.
On the principal that you can't import terms into a contract afterwards my view here is that of you leave you are due the value of the shares at that time.
However, I do suspect that the questions Inhave asked of you that you can't answer may be found in the company's Articles of Association and I would recommend that you get a copy of the Articles before making any decisions. You can get these online in return for payment of a small fee at companieshouse.gov.uk and following the links etc.
I hope this helps. Please leave a positive rating so that I am credited for my time.
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