IBA Guide on Shareholders Agreements

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1 IBA Guide on Shareholders Agreements South Africa Edward Nathan Sonnenbergs Inc 1. Are shareholders agreements frequent in South Africa? Shareholders agreements are widely used in South Africa. The use of shareholders agreements could however decline significantly due to the fact that South African Company Law has in recent months undergone fundamental changes with the commencement of a new Companies Act, No 71 of 2008 (the Act ), on 1 May Under the previous Companies Act (No 61 of 1973) (the Old Act ), provisions contained in shareholders agreements prevailed over the provisions of the Articles of Association and Memorandum of Association of a company, to the extent that any such provisions in the shareholders agreement did not conflict with legislation. The Act now provides that any provision of a shareholders agreement that is inconsistent with the Act or with the company s Memorandum of Incorporation (MOI), being the primary constitutional document of a company under the Act, is void to the extent of such inconsistency (Section 15(7) of the Act). The provisions of shareholders agreements are thus now subject to the provisions of a company s MOI and the Act, and as a result, may no longer be used to vary the provisions contained in a company s primary constitutional document. This fundamental change may well have an adverse impact on the practical utility and value of shareholders agreements. 2. What formalities must shareholders agreements comply with in South Africa? Under both the previous dispensation as well as under the current Act, South African law does not prescribe any specific formalities regarding the form and content of shareholders agreements, save for the limitation, as already mentioned, that the shareholders agreement may not be in conflict with the company s MOI or the provisions of the Act. 1

2 Shareholders agreements are contracts between the shareholders of a company and, as such, are primarily regulated by the principles of South African contract law. As a general principle, contracts need not be reduced to writing and need not, subject to certain exceptions, comply with any formalities in order to be of force and effect. The parties may, however, provide in the contract that their agreement must be reduced to writing. In such an event, the agreement only becomes binding upon signature of the contract by all of the parties thereto. 3. Can shareholders agreements be brought to bear against third parties such as purchasers of shares or successors? Under South African law, the doctrine of privity of contract prescribes that contracts are only binding on the parties to the contract. A shareholder s agreement is accordingly binding only on the parties to the agreement, and may only bind new shareholders of the company if those shareholders consent to be bound by the terms and conditions of the shareholders agreement. A restriction placed on the transfer of shares may, however, affect third parties where a clause has been included in a company s MOI to the effect that the transfer of shares to third parties may only be effected on condition that the third party first agrees in writing to be bound by a particular shareholders agreement, thereby ensuring that the provisions of the shareholders agreement shall be binding on current as well as future shareholders of the company (Section 36(1) of the Act). 4. Can a shareholders agreement regulate non-company contents? The Act expressly provides that shareholders may enter into an agreement with one another concerning any matter relating to the company (Section 15(7)). It appears from this wording that matters that are not related to the company may not form part of the shareholders agreement. The term relating to the company is, however, likely to be interpreted widely and may include aspects such as management rights and obligations as well as arrangements as amongst the shareholders themselves. 2

3 5. Are there limits on the term of shareholders agreements under South African law? The Act does not contain specific limitations on the duration of shareholders agreements and expressly recognises only the right of shareholders to enter into shareholders agreements (Section 15(7)). The general principles of South African contract law do not provide for limitations on the duration of a shareholders agreement. This would imply no restrictions on the term of shareholders agreements, which could therefore run indefinitely. 6. Are shareholders agreements which relate to the actions of directors valid in South Africa? The aim of shareholders agreements in South Africa is to regulate and record the relationship between shareholders and the Company, and the relationship amongst the shareholders themselves. Provisions relating to the actions of directors, such as the powers and duties of the directors, are contained in the MOI of a company, read with the Act. A shareholders agreement may, however, also contain such provisions, provided that the shareholders agreement does not conflict with the Act or the company s MOI. The directors are not necessarily party to the shareholders agreement and obligations cannot be imposed upon them without their knowledge. The company may, however, be a party to a shareholders agreement concluded by the company s shareholders. In such event the agreement shall bind directors of a company when and to the extent that they are acting for and on behalf of the company in their capacity as directors. This is of particular importance in the context of the fiduciary duty which directors owe, to act in the best interest of the company, a duty which has now been codified in the Act. A shareholders agreement may neither require nor permit directors to act contrary to their duty (Section 76(3) of the Act). 3

4 It has to date been commonplace for shareholders agreements to regulate such matters as the appointment of directors, the meetings of the board of directors and the vacation of office by directors. 7. Does the law of South Africa permit restrictions on the transferability of shares? The MOI or the rules of the company (discussed in question 9 below) may provide for restrictions on the transferability of shares in both public and private companies. The Act specifically limits the transferability of shares in private companies. A private company is a company which is not a state-owned company and which is prohibited from offering any of its securities to the public (Section 8 of the Act). In addition, the creation of pre-emptive rights, which amount to a restriction on the transferability of shares to third parties, is permissible in terms of South African company law. The essence of a pre-emptive right is that an existing shareholder is required first to offer its shares to the remaining shareholders, before it may dispose of such shares to third parties. Aside from pre-emptive rights, it was common for the articles of association of private South African companies under the Old Act to contain a provision to the effect that the directors of the company are entitled to refuse to register the transfer of any shares from one person to another, without having to give reasons for their refusal. Under the Act, the MOI of a private company will restrict the transferability of its shares. Provisions of that nature clearly have the effect of restricting the transfer of shares. 8. What mechanism does the law of South Africa permit for regulating share transfers? As discussed above, the Company s MOI and the Act limit the transfer of shares in all private companies. The primary mechanism regulating share transfers is the creation of pre-emptive rights in shareholders agreements. Shareholders, predominantly in private companies, are usually required to offer their shares, in writing, to other existing shareholders before 4

5 offering them to any third party. Only after the remaining shareholders reject such an offer may the shares be offered to parties other than existing shareholders. In addition, a company is free to limit the transfer of its shares in any manner it deems fit in its MOI, provided that such restriction is not prohibited by the Act. Lock-in provisions are also a form of regulating share transfers. Lock-in provisions occur regularly in Broad Based Black Economic Empowerment (BEE) transactions. BEE transactions are designed to enable companies to meet certain shareholder racial and/or gender transformation targets. Such targets, if achieved, may benefit companies in, amongst other things, their applications for licenses, in respect of concessions, in the sale of certain assets and in the process of public procurement. BEE transactions usually involve a considerable investment by the company, and frequently involve stringent shareholder behaviour restrictions post-transaction, including in relation to the transfer of shares by BEE shareholders. The lock-in provisions, which may include a lock-in period, are designed to ensure that the BEE shareholders hold their office for a specific period of time, so that the company s investment is not wasted. Put and call options may also regulate the transfer of shares. A put option gives the holder of shares the right to sell a specified number of shares at a specified price within a specified time to a specified buyer, which buyer is contractually obliged to acquire the shares in question. A call option, on the other hand, gives the holder of shares the right to buy a specified number of shares at a specified price within a specified time from a specified seller, which seller is contractually obliged to dispose of such shares. Tag-along and come-along rights may further regulate the transfer of shares in a company. In terms of tag along rights, the minority shareholder(s) in a company have the right to call upon a third party purchaser of the majority stake in the company to acquire their minority stake at the same time, so that they are not left behind in the company with an unknown majority shareholder. Come-along rights permit the majority shareholder(s) in a company to compel the minority shareholder(s) in the company to join in the sale of all of the shares in a company, in specific circumstances. 5

6 Shareholders agreements may also provide that shareholders are deemed to have offered their shares for sale should certain circumstances arise should such shareholder commit a breach of the shareholders agreement, for example, or should such shareholder become insolvent. The shareholder will then be forced to sell his shares. The transfer of shares may further be regulated by futures, which provide for the disposal of shares at a predetermined future time and price. 9. In South Africa, do by-laws tend to be tailor-drafted, or do they tend to use standard formats? By-laws, known in South Africa as company rules, are a new concept which were introduced to South African company law by the Act. Rules which relate to matters of corporate governance which are not addressed by the Act or the company s MOI may be made, amended or repealed by the board of directors of a company. These amendments to the company rules are subject to confirmation by an ordinary resolution of the shareholders. The Act, however, does not provide a prescribed set of rules, which are compiled by the board of directors of each company (Section 15(3) of the Act). 10. What are the motives in South Africa for executing shareholder agreements? The rationale for executing shareholders agreements is to provide a means for shareholders to protect their interests in the company and to regulate their relationship with the company and the relationship amongst the shareholders themselves. A shareholders agreement regulates the specific interest provided for by the Act or the company s MOI, provided of course that the shareholders agreement does not conflict with any of the provisions of the Act or the company s MOI. There are many reasons for shareholders to elect to enter into a shareholders agreement over and above the MOI of a company, most notably in order that they may address and regulate matters which are not dealt with either by such MOI or the Act. Examples include matters such as the management of a company, the funding of a company, restrictions on the transfer of shares, or voting agreements (in which shareholders undertake to vote in a particular manner under specific circumstances). 6

7 Shareholders may also elect to enter into shareholders agreements in order to elaborate on provisions of the company s MOI which are drafted in terms which allow for amplification. Shareholders agreements are not public documents, which means they are not filed with the Companies Commission, and are not open for inspection by the public. The binding power of shareholders agreements stems from contract law, as opposed to specific company law legislation, and for shareholders agreements to be valid, they have merely to comply with the general requirements of contract law, one of which is naturally that nothing in the agreement contravenes applicable legislation (such as the Act). 11. What contents tend to be included in shareholder agreements in South Africa? Shareholders agreements regulate the affairs between the company and its shareholders, or between the shareholders themselves. Under the new dispensation, however, shareholders agreements are subject to the Act and the company s own MOI. Shareholders agreements may therefore be concluded in order to regulate matters which the shareholders do not wish to appear in the MOI, and which the shareholders may prefer to deal with internally, where allowed, given that the MOI is a public document, whereas the shareholders agreement is not. Typical provisions included in shareholders agreements are more fully set out in paragraph 13 below. 12. What determines the content included in shareholders agreements in South Africa? The parties to the shareholders agreement may decide which aspects they wish to include in the agreement. In terms of South African law, any relationship, interest or obligation relating to the company of which the shareholders have an interest may be included in a shareholders agreement, provided always that such matter does not conflict with the Act or the company s MOI. It may, for example, be preferable for 7

8 information which the shareholders wish to keep out of the public domain to be dealt with in shareholders agreement. Content of a shareholders agreement is largely dependent on the objective of the shareholders in concluding same. If the agreement is being concluded in the context of a BEE transaction, it may contain specific restrictions on transferability of shares, for example. It may even contain grandfather restrictions on transferability of shares at the level of the BEE shareholder itself, such that the BEE status of the BEE shareholder may be preserved. 13. What are the most common types of clauses in shareholders agreements in South Africa? Typical provisions found in shareholders agreements are provisions relating to, inter alia, the business of the company, the capital structure of the company, issuing of new shares, dividend policies, financing, valuation of shares, corporate governance issues such as the election of directors, the voting of shareholders at meetings, voting at board meetings, the management and financing of the company, the voluntary disposal of equity, shareholder voting agreements, remuneration of directors and the appointment of new directors, the quorum requirements for general and/or director s meetings and the percentage of votes that are required to pass resolutions. In addition, methods for dispute resolution consequences of a breach, and restrictions on the transfer of shares (discussed in question 8 above) are standard clauses included in shareholders agreements. The fundamental principle of freedom of contract allows shareholders to include any matter in shareholders agreements, provided that such provision is not in conflict with the Act or the company s MOI. 14. What mechanisms does the law of South Africa permit to ensure the participation of minorities on the board of directors and its control? The law does not require that minority shareholders participate at board level and/or in the day-to-day control of the company. The law does, however, make provision for the protection of minority shareholders in a number of limited circumstances. First, 8

9 appraisal rights are available to dissenting shareholders in the event of the board acting in a way which prejudices the rights of such dissenting shareholders (Section 164 of the Act). The appraisal right affords the shareholders a remedy that requires the company to buy the shares of dissenting shareholders at fair market value. Secondly, the Act also provides an oppression remedy to any shareholder or director who believes that they are or were unfairly prejudiced or oppressed by the company in question in a particular circumstance. In these instances, the court will determine the extent of the prejudice or oppression and make a final or interim order, whichever the court deems fit in the circumstances (Section 163 of the Act). Another means of protection is the provision for special majority votes in circumstances where certain decisions or resolutions require a particular number of votes (more than a simple majority, for example) to be passed either by the directors or the shareholders. BEE transactions may also require that empowered entities, which are often minority shareholders, be granted the right to appoint directors to the board of the company or to participate in the control of the company, and in that manner to participate in the management of the company. 15. Is it possible in South Africa to ensure minority shareholder control by means of a shareholders agreement? Shareholders agreements are subject to the MOI of a company and the Act, and can therefore not amend any of rights attached to any class of shares or effect any change in the control of such company, as these rights will be governed by the company s MOI or are pre-determined according to the provisions of the Act. For example, the rights which attach to different classes of shares and the voting rights of shareholders must be specified in a company s MOI and any provision of the shareholders agreement which purports to vary those provisions shall be void. Shareholders may however undertake contractually, in a shareholders agreement, that they will exercise their votes in a particular manner or waive their rights to vote in particular circumstances, thereby relinquishing effective control of a company. This mechanism is of great significance for BEE transactions, as the BEE partners or 9

10 shareholders in a company are required to exercise effective control over the affairs of the company in order to qualify for certain benefits under BEE. 16. What are the usual valuation mechanisms in connection with the rights of first refusal or share transfer regulations? The mechanism most often employed in the determination of the value of the shares is the fair value thereof, as determined by the company s auditors. The shareholders may, however, choose to provide for the appointment of any other expert for purposes of making such determination. Alternatively this determination could be left to the board of directors of the company who may in turn appoint a third party to do so. Claims on loan account against the company are usually realised at their face value. The Act does not prescribe a value or formula which can be used to determine the value of shares bought pursuant to a right of first refusal, as the parties to the agreement are free to determine the value of such shares upon transfer, bar any prior agreement in this regard. Shareholders can therefore agree on the value of the shares which are to be transferred in a private company. In determining an agreed share value, the parties may consider the par value of shares. Par value shares have an indicative or base value attached to them, known as their nominal or par value, as opposed to no par value shares which have no such indicative or base value attached to them. 17. Is it admissible for a shareholders agreement clause to refer dispute resolution to the courts other than those of South Africa and/or under a law other than that of South Africa? In terms of South African private international law, parties are free to determine the laws that will govern a contract in cases where a foreign element exists or a foreign party is involved. Contracting parties may also consent to or determine the specific forum which should govern any dispute that would arise from the contract, provided that the choice of law is not applied for fraudulent purposes or to avoid any particular South African legal consequences. 10

11 The principles of South African contract law also dictate that parties may agree contractually to submit to the jurisdiction of a foreign court or may even agree that the law of a foreign jurisdiction would be applicable to the resolution of disputes under the shareholders agreement, subject always to certain criteria. There are therefore no restrictions which prohibit parties from agreeing on the legal system that will govern the terms and consequences of their contract. 18. Is it admissible for a shareholders agreement to include an arbitration clause with seat outside of South Africa and/or under a law other than that of South Africa? Any person who is entitled to relief in terms of the Act may refer a matter to any person for arbitration (Section 166 of the Act). Read with the general principles of freedom of contract and party autonomy, parties to an agreement are therefore entitled contractually to undertake to refer a matter for arbitration by a foreign entity or person, provided there is a foreign element that exists in the dispute, which will be better regulated by a foreign expert. In addition, the rules of private international law provide no limitation on the rules of a foreign jurisdiction being applied to disputes which contain a foreign element. South Africa is party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which provides for the enforcement and recognition of arbitration awards made in jurisdictions outside of South Africa. A foreign arbitration award may be made an order of court by a South African court, but the court hearing the matter has a discretion whether or not to make such an order. 11

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