Shareholders Agreements Seminar

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1 Shareholders Agreements Seminar Dechert LLP WALTER DANIEL 20 May 2015

2 Fast Facts LAWYERS 900+ OFFICES WORLDWIDE 27 FOUNDED 1875 LANGUAGES SPOKEN 38 PRO BONO 84,000 hours worldwide in 2014 CHAIR CEO Andrew J. Levander Daniel O Donnell 2

3 Dechert Around the World 3

4 Internationally Recognized Practice AWARDS Ranked among the top law firms globally for international arbitration and investment funds: hedge funds Recognized among the top law firms for corporate/m&a in Belgium, Germany, Russia, Kazakhstan, United Arab Emirates, United Kingdom and the United States 2015 Dechert has a strong debt capital markets practice concentrating on the emerging markets... Represents global investment banks, investment funds, sovereigns and quasisovereigns Ranked among the top law firms for corporate/m&a in Belgium, Germany, Luxembourg, Russia, United Arab Emirates, United Kingdom and the United States Recognized among the top law firms for dispute resolution in China, France, Hong Kong, Russia, United Arab Emirates and the United Kingdom 2015 Dechert combines excellent knowledge and response times to provide a professional and client-oriented service Recognized among the Financial Times Top North American Innovative Law Firms Recognized among the Financial Times Top European Innovative Law Firms 2014 Consistently ranked as a leading firm for antitrust, intellectual property, products liability, and white collar crime

5 Internationally Recognized Kazakhstan Practice AWARDS Top rankings for dispute resolution and energy & natural resources. Excellent attention to detail, client focus and technical competence. Dechert s main strength is rooted in its representatives being highly goal-oriented. The Dechert Almaty office provides legal recommendations and solutions that often exceed our expectations Department head Kenneth Mack continues to be held in regard for his technical expertise and strong market knowledge. He earns praise for his good appreciation of the issues that are important to his clients, and for his ability to see the bigger picture and provide relevant suggestions Six lawyers ranked. Victor Mokrousov is described as very smart and technically competent. Walter Daniel impresses clients with his broad professional expertise and immense work ethic. Sergei Vataev is held in high regard, while Mukhit Yeleuov is recommended as a great litigator. Yelena Pestereva is also an associate to watch Dechert LLP provides timely and helpful support, and speaks the client s language. The firm runs a full-service practice, with experience in financing, corporate and dispute resolution matters, as well as general business support Sergei Vataev and the highly rated Victor Mokrousov are the primary corporate and commercial lawyers, with dispute resolution work led by Vataev and Mukhit Yeleuov, who is a highly qualified legal professional with a deep knowledge of Kazakhstan legislation. Managing partner Kenneth Mack is well regarded. Dechert "counts leading local and international companies among its clients. Best known for its oil and gas, finance, capital markets and litigation practices, and [for] making substantial inroads into environmental work."

6 May 20, 2015 English Law Shareholders Agreements Issues to Consider Almaty, Kazakhstan WALTER DANIEL

7 English Law English law has become the governing law of choice for a wide variety of international transactions English language / British Empire Connection to the USA Independent and sophisticated courts Common law versus civil law: common law is more flexible in allowing the parties to agree their own terms Basic English law principle caveat emptor let the buyer beware Agreements tend to be long and heavily negotiated 7

8 Joint Venture ( JV ) Most JVs are established in the form of a project company (separate legal entity) But there can be unincorporated joint ventures Association of International Petroleum Negotiators ( AIPN ) Joint Operating Agreement ( JOA ) is often used for oil and gas joint ventures Consortium Agreement among consortium members that serve as the contractor under an engineering, procurement and construction contract 8

9 JV Company In Kazakhstan, the majority of JV project companies (if not Kazakhstan legal entities) take the form of Dutch private companies with limited liability Besloten vennootschap met beperkte aansprakelijkheid ( Dutch BV ) But the project company can be incorporated in any offshore jurisdiction (England, Austria, Switzerland, etc.) it depends on tax and legal structuring. The Dutch BV (or other jurisdiction) project company (special purpose vehicle) will wholly own the Kazakhstan operating company(ies) The shareholders agreement will be at the offshore project company level English law governed shareholders agreement will govern legal relations among the shareholders of the offshore project company Dutch law (and laws of most other jurisdictions) permit this arrangement, subject to the application of mandatory principles of domestic law Sometimes important to show substance at offshore project company level 9

10 JV Company Constitution In a corporate joint venture, there are two key documents: Articles of Association (Charter) Shareholders Agreement It is important to avoid conflicts between the Shareholders Agreement and the Articles of Association. Either document can prevail depending on the stated intention of the parties. It is common to provide that the Shareholders Agreement will prevail, and this will be enforceable as between the parties. 10

11 Articles of Association ( Articles ) Articles of Association A legal entity (company; corporation) is a creature of statute. There is a body of law governing how a company can be run. The Articles determine the company s actions and will bind the company, its shareholders and directors. The Articles are filed with the applicable governmental authority and are normally a matter of public record. The Articles address matters such as separate classes of shares and respective voting rights (or variations of such rights), procedures for issuance and transfer of shares, notice and proceedings for shareholders and director meetings, and appointment and powers/duties of directors. The Articles are a contract between the company and its members, and both damages as well as equitable remedies may apply for a breach. The Articles must comply with applicable law certain actions in breach of the Articles may be void. 11

12 Shareholders Agreement ( SHA ) Shareholders Agreement The SHA is a simple private contract between all or some of the shareholders. It can deal with all aspects of the relationship between the parties if required, including the personal rights and obligations of the shareholders. A breach of the SHA gives rise to contractual remedies, usually damages only (difficult to quantify). An injunction may be available in certain circumstances at the discretion of the court To ensure that each party takes the necessary voting action when voting as a shareholder of the joint venture company to give effect to its terms Sometimes the joint venture company is a party to the SHA But SHA terms that fetter the company s statutory powers are generally not enforceable against the company (but may be enforceable against the shareholders if the company s obligation is severable) 12

13 What to consider The following should be considered in preparing the Articles and SHA: The object of the joint venture and any limitations on its scope of activities Typically the JV company cannot deviate from its core business except with unanimous consent of the Shareholders. How the JV company is to be governed and managed Minority shareholder protections (Reserved Matters) How to deal with deadlocks between the parties or a breach by a party The terms on which a party can transfer its shares to a third party The circumstances in which the joint venture will terminate and/or shareholder(s) will exit, including the mechanics and implications of termination and/or exit Will there be confidentiality obligations and/or protective covenants (restrictive covenants; non-competes)? 13

14 Governance The SHA is a framework agreement pursuant to which the shareholders manage their joint venture General Meeting of Shareholders What actions of the joint venture will fall within the exclusive authority of the General Meeting of Shareholders? Board of Directors (Supervisory Board) What actions of the joint venture will fall within the exclusive authority of the Board of Directors? How many Directors will there be and who gets to appoint them? Executive Body (Management Board; Chief Executive Officer) How much authority will be vested in the company s management? Normally one shareholder appoints the Chief Executive Officer (General Director) and the other shareholder appoints the Chief Financial Officer (Finance Director) The SHA may allocate other management appointments among the shareholders. 14

15 General Meeting of Shareholders Typically the General Meeting of Shareholders approves Amendments to the Articles (including issuance of additional equity or acceptance of new shareholders) Annual Accounts / Annual Dividend (can also be assigned to the Board of Directors) Appointment of auditors (can also be assigned to the Board of Directors) Election/Dismissal of the Board of Directors Affiliate contracts / resolutions of conflicts of interest Bet the company transactions this acts as a check on the Board of Directors Bankruptcy filing The General Meeting may meet only once per year, although Extraordinary General Meetings may be called. General Meetings tend to be formal affairs. 15

16 Board of Directors Typically the Board of Directors approves Annual Business Plan and Annual Budget and any amendments thereto Annual Accounts / Annual Dividends Expenditures over a certain amount Election/Dismissal of the Management Contracts / Loans / Guarantees with a value over a certain amount Settlement of litigation / arbitration involving payments over a certain amount Commencement of litigation or dispute resolution proceedings The Board of Directors usually meets calendar quarterly. Typically a Board meeting can (and should) be called quickly to allow the Company to take immediate action. Unanimous written consent of the Board of Directors in lieu of a meeting. 16

17 Procedures for Meetings SHA (and/or Articles) should include procedures for the holding of General Meetings of Shareholders and the holding of Board of Directors meetings (parties may rely on applicable law if robust enough) No less than X days written notice The notice should include an agenda with reasonably sufficient documentation to facilitate an analysis of the agenda items Participants should be allowed to take part via teleconference / videoconference. Recipients are allowed to add matters to the agenda A quorum must be present in order to do business Reserved matters require a higher number of meeting attendees to achieve a quorum (often unanimous) What happens if a quorum is not achieved? Deadlock. Adjourn the meeting to a later date with a lesser quorum requirement. Minutes should be taken and approved. Votes counted and registered. 17

18 Reserved Matters (Minority Shareholder Protections) The matter is not approved unless the General Meeting of Shareholders or the Board of Directors as the case may be unanimously approves it. Reserved matters often include: Amendment to the Articles Mergers with or acquisitions of another legal entity Formation of a new legal entity Issuance of additional debt or equity or acceptance of new shareholders Appointment of (or change in) the external auditor Annual Accounts Annual Dividends Bankruptcy filing or debt restructuring 18

19 Reserved Matters (Minority Shareholder Protections) Reserved matters often include: Engaging in business outside of the Company s line of business Annual Business Plan or amendments thereto Annual Budget or amendments thereto Expenditures over a certain amount Encumbrances in excess of a certain amount of the company s property Contracts / Loans / Guarantees over a certain amount Settlement of disputes involving payments over a certain amount or the admission by the company of wilful misconduct or violation of law Commencement of litigation or other dispute resolution proceedings Affiliate contracts / resolutions of conflict of interest 19

20 Deadlock What happens if a Reserved Matter is not approved by the applicable governing body? Then it is not approved. It is recommended that the SHA be clear about this. Does the failure to approve the Reserved Matter mean that the company cannot continue with its business or achieve its purpose? Annual Business Plan or amendments thereto Annual Budget or amendments thereto Annual Accounts / Dividends Approval of material contracts Approval of emergency financing Failure to achieve a quorum in order to vote upon a Reserved Matter or even conduct business at the General Meeting or Board of Directors. 20

21 Pre-Agreed Deadlock Resolution Try to avoid a deadlock in the first place Forced negotiations (CEOs of the shareholders are required to meet and discuss for an extended time period) Use Annual Business Plan and Annual Budget from last year with a ±[X]% flexibility Agree the identity of auditor in the SHA, or provide for the auditor to be appointed via simple majority vote from a pre-agreed list in the SHA Annual Accounts are automatically approved if the auditor provides a clean audit opinion SHA to provide for automatic annual dividend representing a certain percentage of annual net profits 21

22 Pre-Agreed Deadlock Resolution Try to avoid a deadlock in the first place Provided that advance notice of the meeting is properly delivered for the applicable failed meetings, a quorum is deemed achieved on the 3rd meeting if lesser number of invitees attends. Contracts / expenditures are automatically approved if they are contemplated in the approved Annual Budget Inter-affiliate loans are allowed if on market terms and necessary to avoid insolvency Casting vote in favour of majority subject to an equitable adjustment (per independent expert procedure) for minority 22

23 Deadlock Resolution Dispute Resolution / Arbitration or Independent Expert Procedure Allow shareholders to transfer to third parties (remove lock-up or consent provisions) Winding up If the JV has irretrievably broken down, the parties may determine that it simply be wound up and the assets distributed. Only exit mechanism where the JV is personal to the shareholders, i.e., a shareholder s participation in the JV is essential or the shareholders have contributed licenses or IP that cannot be transferrable Put Option or Call Option The minority shareholder may sell (put) its shares to the other shareholder(s) with greater commercial strength, and/or the majority shareholder may buy out (call) the minority. Price is set pursuant to a pre-agreed formula or via an independent expert determination. 23

24 Deadlock Resolution (Texas shoot out) Texas shoot out (Mexican shoot out) (first alternative): Any shareholder ( First Shareholder ) may serve notice on the other shareholder ( Second Shareholder ) stating that it wishes to buy out the Second Shareholder s shares at the price set out in the notice. The Second Shareholder may serve a counter-notice either accepting the offer or confirming that the Second Shareholder will buy the First Shareholder s shares at a higher price. If the Second Shareholder indicates that it wishes to buy out the First Shareholder at a higher price, this triggers a bidding process involving the making of sealed bids to a third party or the JV company. Alternatively the bidding process may be run as an auction. Texas shoot out (Mexican shoot out) (second alternative): Shareholders submit their notices directly to the JV company (or third party) and commence the bidding (or auction) process without initially proposing to each other. Failure of the shareholders to serve a shoot out notice leads to liquidation of the JV company. 24

25 Deadlock Resolution (Russian Roulette) Russian Roulette Any shareholder ( First Shareholder ) may serve notice on the other shareholder ( Second Shareholder ) requiring that either (i) the Second Shareholder purchase all of the First Shareholder s shares or (ii) the Second Shareholder sell all of its shares to the First Shareholder, at the price set out in the notice. The Second Shareholder must agree either to sell its shares or buy the First Shareholder s shares within a certain period. Failure to respond is deemed agreement to sell. Failure of the shareholders to serve a roulette notice leads to liquidation of the JV company. 25

26 Texas shoot out and Russian Roulette Texas shoot out enables the shareholders to arrive at the best price as between them. Russian Roulette facilitates a fair price proposal by the First Shareholder, as the shareholder is aware that it will have to buy or sell at such price. However, it one party knows that another cannot buy, the method can be manipulated unfairly. Texas shoot out and Russian Roulette work in JVs with two shareholders where both parties have the financial capacity to buy and there is nothing unique about the role of either party. Subject to abuse if one shareholder has less financial capacity than the other or is not in a position to buy. Assumes that either shareholder is capable of running the company on its own. 26

27 Default Failure to meet funding commitments Breach of the non-compete or other conflict of interest Breach of confidentiality obligations Change of control of a shareholder (in certain circumstances) Bankruptcy or insolvency of a shareholder A shareholder purporting to transfer its shares otherwise than in accordance with the Articles or the SHA A material breach of the SHA that is not remedied within 30 days of the date of receipt by the defaulting shareholder of notice of the breach Multiple material breaches 27

28 Default Resolution Sue for damages Put or call option in favour of the non-defaulting shareholder The non-defaulting shareholder can put (sell) its shares to the defaulting shareholder. Alternatively the non-defaulting shareholder can call (require the defaulting shareholder to sell) the shares of the defaulting shareholder. Option price is determined pursuant to a pre-agreed formula or set by an independent expert (determination of price should account for the reduction in value caused by the default if call is exercised (but not in case of put)). Damages of the non-defaulting shareholder are deducted from the purchase price in case of call or added in case of put. Enforced transfer at less than market or fair value (less damages of nondefaulting shareholder) may be held to be an unenforceable penalty. Keeping the transfer and the value reduction in separate clause may enable severance if the reduction is deemed to be a penalty. 28

29 Transfers SHAs typically place restrictions on transfers of shares No transfers to competitors or parties who are unlikely to meet SHA commitments Lock-up Period Keeps the shareholders involved for a period sufficient to build a viable business Pre-emptive right The non-selling shareholder has the right to acquire the selling shareholder s shares on the same terms and conditions as the selling shareholder has agreed with the third party buyer Right of First Offer (ROFO) The selling shareholder must first offer to sell its shares to the other shareholder. If the other shareholder refuses to buy, the selling shareholder may sell it shares for a price not less than originally offered to the other shareholder. 29

30 Drag Along & Tag Along Drag Along Right The selling shareholder can require the other shareholder(s) to sell their shares so that the buyer acquires 100% (or majority). This right is typically given to the majority shareholder. The SHA should provide that the dragged shareholder is only required to give title, capacity and authority warranties (or other pre-agreed set of warranties / indemnities) and is entitled to full cash consideration at closing. Tag Along Right The non-selling shareholder(s) can require the selling shareholder to include their shares in the sale. This right is typically given to the minority shareholder(s) in exchange for the drag. In the tag context, it is fair to require the tagging shareholders to enter into the same agreement (terms) and accept the same consideration as the selling shareholder. 30

31 Protective / Restrictive Covenants (Non-Compete) These covenants (as well as confidentiality obligations) should be embedded in the SHA if a particular shareholder s ongoing involvement is essential for managing and/or growing the business. If enforcing party, we call them protective (not restrictive ) covenants. Temptation to extend scope as widely as possible, but this raises enforceability issues. Time and geographical cover SHA should contain a precise description of what the Business is and where exactly it operates. Negotiated carve-outs Severability to preserve other provisions of an agreement if one provision of an agreement fails (is held unenforceable). 31

32 Governing Law and Dispute Resolution SHA should include a governing law and dispute resolution clause. Analyze arbitration treaty provisions to ensure nexus if disputes are resolved via international arbitration. International Chamber of Commerce (ICC) arbitration assesses a fee based on the amount in Dispute. London Court of International Arbitration (LCIA) charges by the hour. Ensure that consolidated arbitration provisions cut across all transaction documents so that one consolidated arbitration may be brought in the same forum, or multiple arbitrations may be merged into one arbitration in the same forum. Sale and Purchase Agreement, Shareholders Agreement, Project Agreement, Management Services Agreement, etc. 32

33 For further information, visit our website at dechert.com. Right click on chart to edit data Dechert practices as a limited liability partnership or limited liability company other than in Dublin, Hong Kong and Luxembourg. Ut Malesuada Praesent Dictum Eros Sit Amet Varius Sollicitudin Rhoncus

34 20 May 2015 Adopting English Law Shareholder Agreement Principles in the Kazakhstan Context Almaty, Kazakhstan

35 Choice of law Agreement on the establishment of a legal entity(art of the Civil Code) The law of the country where a legal entity is to be incorporated or has been incorporated shall apply Relations associated with the establishment and termination of a legal entity, transfer of a participatory interest in it and other relations between participants of a legal entity connected with their mutual rights and obligations Establishment of mutual rights and obligations of participants of a legal entity by subsequent agreements 2

36 Choice of law Kazakhstan or foreign? Foreign element (Art of the Civil Code) Complex transactions Framework (umbrella) agreements Options Financing Consequences of a breach(art of the Civil Code) Invalidation of the clause and application of the Kazakhstan law 3

37 Forms of agreements Shareholder Agreement is not directly provided by law Freedom of contract Parties can enter into any contract, whether contemplated by law or not (Art. 380 of the Civil Code) Terms and conditions of a contract are determined by the parties, except for the terms and conditions mandated by law (Art. 382 of the Civil Code) 4

38 Forms of agreements Foundation Agreement (LLP) Procedure for establishment of a partnership Charter capital, types, amount and timing of capital contributions Transfers of equity interest Distribution of net income Foundation Agreement is subject to a notary certification Foundation Agreement of a JSC terminates upon the state registration of share issue 5

39 Shareholder Agreement Non-compete undertakings Anti-competitive agreements and the exception for intragroup transactions No conflict of interest JSC Law Board shall identify and, if possible, eliminate potential conflicts of interest involving officers, directors and shareholders (Art. 53) LLP Law Executives are prohibited from carrying out commercial activity competing with the activity of the partnership (Art. 55) 6

40 Shareholder Agreement Authority of corporate bodies Transfers of shares Tag along and drag along rights Preemptive purchase right Deadlock Negotiations Buyout Assignments Dispute resolution 7

41 For further information, visit our website at dechert.com. Right click on chart to edit data Dechert practices as a limited liability partnership or limited liability company other than in Dublin, Hong Kong and Luxembourg. Ut Malesuada Praesent Dictum Eros Sit Amet Varius Sollicitudin Rhoncus

42 May 20, 2015 Dispute Resolution Issues Arising in the Context of Shareholder Agreements Almaty, Kazakhstan

43 Dispute Resolution Clause Importance of the dispute resolution clause The life of the company may depend on this clause Often left for later stage of negotiations. Psychologically uncomfortable to discuss Use experts! Court or arbitration? 2

44 Dispute Resolution Does the agreement provide for a competent and neutral forum? Is the dispute resolution clause enforceable, and will you be able to enforce a judgment? Coordinate dispute resolution provisions across various documents. 3

45 Governing Law and choice of forum issues Options for choice of forum court in Kazakhstan foreign court; arbitration in Kazakhstan foreign arbitration 4

46 Governing Law and choice of forum issues Choice of governing law does it automatically determines the choice of forum? Choice of foreign law differing views End result enforcement of the decision! Risks in choosing foreign law and Kazakhstan court Article 1086 (4) of the Civil Code and Articles 242 and 243 of the Civil Procedure Code 5

47 Combinations of governing law and forum Choice of forum in a transaction between residents Court in RK: enforceable in the RK, unenforceable almost elsewhere in the rest of the world; Foreign court: depends on the country of the court; Arbitration in RK: enforceable almost everywhere; Foreign arbitration: enforceable almost everywhere, but questionable in the RK Choice of forum in a transaction with at least one non-resident limitations related to resident status are not applicable. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention 1958) 154 countries of 193 UN Member States 6

48 New York Convention

49 Corporate Disputes Definition of a corporate dispute First introduced into Article 24 of the Civil Procedure Code in 2008 by a package of legislative amendments concerning corporate disputes Since 2015 is gone from there, and can be found only in the Normative Ruling of the Supreme Court 2 dated March 20, 2003 By parties The corporate disputes were defined as disputes a party to which are commercial organizations, associations/unions thereof, associations/unions of commercial organizations and/or individual entrepreneurs, non-commercial organizations with a status of selfgoverning organization in accordance with Kazakhstan laws and/or its shareholders/participants/members 8

50 Corporate Disputes: by subject matter By subject matter corporate disputes are those Connected to creation, reorganization and liquidation of a legal entity Connected to ownership of shares and interests, their encumbrance and exercising of rights associated therewith (except for inheritance issues and division of marital property) Claims of participant of a legal entity for damages caused to the legal entity; invalidation of legal entity s transactions and/or applying the results of invalidation; Connected to election or appointment, termination, suspension and liability of members of the governing bodies, as well as disputes between such members and the legal entity in relation to exercising, termination and suspension of their mandates. 9

51 Corporate Disputes: by subject matter (Cont d) Connected to issuance of securities, maintenance of the securities holders registers, record-keeping of rights to shares and securities, as well as disputes connected to placement and circulation of securities; Connected to invalidation of state registration of securities On convening general participants meeting; On challegning decisions and actions/inactions of the governing bodies of the company. 10

52 Corporate Disputes Are corporate disputes arbitrable? «A dispute originating from civil law relationships upon agreement of the parties may be resolved by mediation or referred to arbitration tribunal unless it is prohibited by Kazakhstan legislation» Rules concerning producing evidence introduced into the Civil Procedure Code in

53 Particular Matters Shareholder s loan or shareholder's guarantee Would a dispute arising out of such contracts be a corporate dispute? If invalidation is sought by a participant, then yes. Major shareholder in the context of corporate disputes Article 1(23) of the JSC Law shareholders can enter into agreement to form a major shareholder. Major shareholder may sue for convening of the GSM or conducting an audit Shareholders agreement for the purposes of Article 63 of the JSC Law Article 63(2) of the JSC Law permits shareholders to enter into an agreement to form a 5% package of shares required for filing a lawsuit against an officer of the JSC. 12

54 For further information, visit our website at dechert.com. Right click on chart to edit data Dechert practices as a limited liability partnership or limited liability company other than in Dublin, Hong Kong and Luxembourg. Ut Malesuada Praesent Dictum Eros Sit Amet Varius Sollicitudin Rhoncus

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