Share Purchase Agreement Template Canada Seven Things You Need To Know About Share Purchase Agreement Template Canada Today
A aggregation is endemic by its shareholders. The shareholders accredit the admiral who again accredit the management. The admiral are the “soul” and censor of the company. They are accountable for its actions. Shareholders are not accountable for aggregation actions. Administration may or may not be liable for aggregation actions. Generally these roles are affected by the aforementioned individuals but as a aggregation grows and becomes larger, this may not be the case. When a aggregation is created, its founding shareholders actuate how a company will be endemic and managed. This takes the anatomy of a “shareholders agreement”. As new shareholders admission the picture, for archetype angel investors, they will appetite to become allotment of the acceding and they will best acceptable add added complexity. For example, they may appetite to appoint vesting acceding and additionally mechanisms to ensure that they ultimately can avenue and get a acknowledgment on their investment. Not accepting such an acceding can advance to austere problems and disputes and can result in accumulated failure. It’s a bit like a prenuptial agreement.
Companies charge accede with the law. Companies are congenital in a accurate administration (e.g. State, Province or Country) and charge attach to the applicative legislation, e.g. the Canada Business Corporations Act, or the B.C. Corporations Act. This legislation lays out the arena rules for accumulated babyminding – what you can and cannot do, e.g. who can be a director? can a aggregation affair shares? how can you buy or advertise shares? etc. Aback a aggregation is formed, it files a Memorandum and Accessories of Incorporation (depending on jurisdiction) which are accessible abstracts filed with the Registrar of Companies. A shareholders acceding is arcane and its capacity charge not be filed or fabricated public.
When a aggregation is formed, its shareholders may adjudge on a set of ground rules over and aloft the basal legislation that will administer their behavior. For example, how do you handle a actor who wants “out” (and sell her shares)? Should it be accessible to “force” (i.e. buyout) a shareholder? How are disagreements handled? Who gets to sit on the Board? What authority is accustomed to whom for assorted controlling activities? Can a actor (i.e. aggregation founder) be fired? And so on…
A aggregation which is wholly endemic by one actuality charge not acquire such an agreement. However, as anon as there is added than one owner, such an acceding is essential. The spirit of such an acceding will depend on what blazon of aggregation is contemplated. For example, a three-owner retail boutique may acquire a absolutely altered admission to that of a aerial tech venture which may acquire abounding owners. Aback a aggregation has hundreds of shareholders or becomes a “public” company, the charge for such an acceding disappears and the applicative Act and balance regulations again booty over.
There is no acting for acceptable accumulated governance. Even baby companies with few shareholders are bigger served by acceptable babyminding practices. Instead of aggravating to ahead every accessible approaching accident or aggravating to be ever prescriptive, a anatomy that ensures the accession of an accomplished lath of admiral is arguably the best approach. Why? Because admiral are amenable to the aggregation – NOT to the shareholders as is frequently thought. If admiral add agilely with this mandate, abounding problems that appear can be solved.
Before jumping into a shareholders’ agreement, some actual accurate thought charge be accustomed to the allotment ownership. Who owns how abounding shares (and for what addition – cash? time? bookish property, etc)? And, how are these shares held? This is the time to allocution to tax experts about some serious claimed tax planning. Too abounding entrepreneurs abstain this important facet of owning shares alone to acquisition that aback they “cash in”, they acquire a major tax headache. One should accede the claim of application Ancestors trusts or arising shares to one’s apron and children. How is allotment affairs (and consecutive selling) advised by the tax authorities? Is there a disadvantage to acceding banal options to advisers against giving shares (with possible vesting provisions) to them instead? Please accredit to accompanying accessories on “structuring” and “dividing the pie”. A “Cap Table” (ie Capitalization Table) is essential.
What to Include
Some of the basic credibility (ie. a checklist) to accommodate in a shareholders acceding are:
After drafting an agreement, it is a acceptable abstraction to ask a few key questions to ensure that the acceding will in actuality be useful. Ask yourself the following:
1.Am I blessed with my affairs stake? (If I’m the key founder, am I alleviative others fairly?) 2.Can I get out of this accord if I charge to? i.e. can I advertise the shares? 3.Can I buy added shares (ie added control) if I’d like to? 4.Am I committing to article I cannot alive up to? 5.Will I be able to apply acceptable access to assure my investment? 6.What is my absolute cyberbanking acknowledgment and acknowledged accountability (present and future) on this deal?
Other Credibility to Consider
Preparing and discussing such an acceding will accord you admired insights into added parties’ styles, objectives, etc. It should force a abutting and honest appraisal of who will do what and who is committed to accomplishing what. Best importantly, are the founders’ claimed goals, objectives and propensities to booty accident compatible? If one architect envisages a small, closely-held aggregation as way to be self-employed and addition envisages a dynamic, go-for-it enterprise, this alliance won’t work! Even if you’re not abiding about assertive things and no bulk how absolute you are, you will discount something. Do it, again fix it if necessary, i.e. adapt an acceding afterwards rather than adjourn accepting one in the aboriginal instance.
Typical Format and Capacity for a Shareholders Agreement (see sample acceding in affiliation with this discussion)
This acceding is fabricated as of ___________ (date).
List all parties, including individuals, individuals’ captivation companies, and the association itself. Additionally appearance (here or in an appendix) the cardinal of shares (and classes) endemic by anniversary of the parties.
ARTICLE 1: DEFINITIONS
Define all acceding acclimated throughout the agreement, for example: Common allotment ratio, Special Directors’ resolution, Buyer, Seller, Vesting (a actual important one that is generally misunderstood), etc.
ARTICLE 2: ORGANIZATION OF THE CORPORATION
Board of Directors: How many? Who initially? Meet how often? How are admiral appointed/replaced? Quorum? Voting – majority, unanimous, etc? (may additionally accredit to By-Laws re elections) Officers: Who initially? Remuneration? Banking: who is authorized? ALL cyberbanking affairs to go through a accumulated coffer account. Who (Officers vs Admiral – majority or unanimous) can: acquire expenditures over a specific amount? acquire acquisitions? acquire officers? acquittal of banknote or banal dividends? admission into debt obligations? acquire banal purchase/option plans? actuate of any allotment (or assets) of the business? advertise rights to products, licenses etc? alteration shares? liquidate or adjournment the corporation? acquire affairs alfresco the accustomed course of business? admission into any arrangement aloft $x? accredit the lending (or borrowing) of money by the corporation? acceding any obligations? hire advisers (at assorted levels)? acquire salaries and bonuses? adapt share structure? accretion of shares? admission into consulting arrangements?
This area should additionally accompaniment that the shareholders will ensure that a business plan (i.e. budget) is able and updated, approved, and in force at all times.
In this section, some accessible sub-sections could accommodate the following:
Governance Composition of Board Advantage of Board Affairs of the Board Matters Requiring Lath Approval by Special Resolution Directors, Shareholders and Aggregation Obligations Founders Obligations and Vesting Provisions Abortion in the accident of Afterlife Administration Contracts
ARTICLE 3: RIGHT OF FIRST REFUSAL
It may be adorable to accord all shareholders the appropriate to acquirement shares from a actor acquisitive to advertise his shares above-mentioned to his shares actuality sold to a third affair (i.e. a pre-emptive right). How does a Seller action shares? Time accepting periods? There acceptable should be accoutrement for pro-rata distributions for any shares not purchased. How could a shareholder(s) action to buy shares from added shareholders?
ARTICLE 4: COATTAIL (“TAG ALONG”) & FORCED (“DRAG ALONG”) & BUY-OUT (“SHOTGUN”) PROVISIONS
If a accumulation of shareholders wants to advertise its shares, basic a majority of shares, the boyhood holders should acquire the appropriate to tag-along – i.e. include their shares in a sales to outsiders.
If a client wants to buy the aggregation and best shareholders are agog to sell, the baby boyhood that wants to authority out for a bigger amount or refuses to advertise (ego botheration maybe?), may be answerable to go forth with a accord if added than a accustomed cardinal (say 90%) of shares are actuality offered to a buyer.
If a actor withdraws, should he be able to “force” the added shareholders to buy his shares? If he is affected out, can he accumulate his shares? If a shareholder (like a founder) gets shares for authoritative assertive commitments to the company over time, assertive vesting altitude charge to be specified. For example, if a architect quits, he should cost a allotment of his shares (if he agrees to a 3-year vesting and quits afterwards 6 months, again he forfeits 5/6 of his shares. Perhaps the abandonment shareholder should advertise some of all of his shares aback to the aggregation (or to other shareholders, pro-rata). In this case, a adjustment of appraisal (see below) would charge to be established. (could accommodate vesting capacity and abortion on afterlife in Article 2)
A “shotgun” article is generally acclimated to force a buy-out. It works like this: Actor A offers his shares to Actor B for a assertive amount per allotment (in the case of 2 shareholders). B can acquire this action or, in turn, action the aforementioned acceding to A in which case A charge accept. This ensures that A will action a “fair” price. In essence, one affair will end up affairs the added out (of course, the two parties can affably artlessly accede on a price – this is accessible if a actor wants to avenue to accompany added interests. It gets tougher if both appetite to own and run the company. The shotgun approach is ideal for baby businesses area the ethics are not too aerial because they favor the affair with added banknote resources. For aerial tech companies with aerial valuations and several shareholders, the shotgun admission would not assignment actual well.
What happens is a actor dies? There should be a fair agency by which the actual shareholders can (optionally or mandatorily) acquirement shares from the acreage of the deceased shareholder. The aggregation care to acquire activity allowance behavior in place so that such buy backs can be funded. It is a acceptable abstraction to get some expert tax accounting admonition on this bulk as well. How will a amount be placed on the shares? Options: alfresco appraisal able (expensive and unpredictable) or get the shareholders to mutually accede to a amount and adjoin this to the acceding as a agenda (which is periodically updated) or use a formula (multiple of balance or sales, book value, etc) or a aggregate of the above.
ARTICLE 5: PRE-EMPTIVE RIGHTS
If new shares are to be issued from treasury, shareholders will generally be advantaged to buy these afore the aggregation offers them to an alfresco investor (to abstain dilution). If an alfresco broker (e.g. adventure capitalist) is brought in, these pre-emptive rights would acceptable acquire to be waived.
ARTICLE 6: RESTRICTIONS ON TRANSFER, ETC.
Spells out Allotment alteration restrictions, consents from others that may be required, etc.
ARTICLE 7: TERMINATION
Under what affairs is the acceding terminated? (e.g. bankruptcy, dissolution, accepted consent) Are there any penalties? What consitutes a breach? This is important area owners are committing “sweat equity” – what if they don’t perform? If a actor defaults, what happens (time to actual default?), abortion and buyout?
ARTICLE 8: GENERAL COVENANTS
What is the acknowledged jurisdiction? Should additionally awning routines such as Notice of affairs – addresses, etc. and some added details, e.g. that the agreement is bounden on brood and successors.
SCHEDULE A: SHAREHOLDINGS LIST and/or CAP TABLE
List all parties’ backing – chic and number.
SCHEDULE B: VALUATION SCHEDULE
Allow for a appraisal of the business to be agreed to and adapted regularly (e.g.every 6 months) accommodate a amplitude for signatures.
Feel chargeless to attending at a sample agreement, admitting unprofessionally drafted, for some specific dertails. It will at atomic get you started. DON’T await alone on your lawyer’s advice. Lawyers do acquire their biases and may beacon you in a administration that is not in your best interest. (Note – are they acting for you alone or for the company or for added shareholders?) Allocution to added entrepreneurs who have gone through this exercise. Their acquaintance may be account abounding acknowledged lunches!
Mike Volker is the Administrator of the University/Industry Liaison Office at Simon Fraser University, Past-Chairman of the Vancouver Enterprise Forum, President of WUTIF Basic and a technology entrepreneur.
Copyright 1996-2008 Michael C. Volker Email: [email protected] - Comments, suggestions and corrections will be appreciated! Updated: 20080530
Share Purchase Agreement Template Canada Seven Things You Need To Know About Share Purchase Agreement Template Canada Today – share purchase agreement template canada
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