Minority shareholders are often faced with the challenge of entrenching their rights in a company and making sure their voices are heard. Although there are certain statutory protections that are afforded to them, minority shareholders can request that certain additional protections are included in a company’s constitutional documents which will afford them even greater protection. If you are going to be a minority shareholder in a company (that is, you will hold less than 50% of the shares in the company), the following tips may help you secure your position:
Include rights of pre-emption
Rights of pre-emption can be included for further issues of new shares by the company and sales of shares by shareholders. In respect of the issue of new shares by the company, it is important that a company’s constitutional documents contain a right of pre-emption in terms of which the company is obliged to first offer shares to the existing shareholders pro rata to their shareholding in the company, before being offered to a third party. This prevents minority shareholders’ shareholding in the company from being further diluted. Although the Companies Act does include this statutory protection, companies are entitled to amend this provision in their constitutional documents and exclude this protection. Minority shareholders are therefore advised to ensure that this protection is entrenched in the company’s constitutional documents. Similarly, it is important that a company’s constitutional documents contain a right of pre-emption in respect of the sale of existing shareholders’ shares. Ideally, shareholders who wish to dispose of their shares are obliged to first offer their shares to the existing shareholders pro rata to their shareholding in the company, before being offered to a third party for sale. This protects existing shareholders (including minority shareholders) from having a new (and possibly unwanted) shareholder being foisted upon them.
Provide for “specially protected matters”
It is important that a shareholders’ agreement and/or memorandum of incorporation contains a list of “specially protected matters” which require approval by shareholders holding a specified threshold (typically at least 75%) of the shares in the company. Put differently, a list of possible transactions or eventualities should be drawn up which require that minority shareholders vote on them before they are actioned. Although the Companies Act does contain a statutory list of matters requiring the approval of shareholders holding at least 75% of the issued share capital, this list can be amended to include additional matters and the required threshold can also be increased. A material change in the nature of the business, the encumbering of the company’s assets, and appointment of senior executives earning above a certain amount would typically be included in this extended list.
Ensure representation at board and shareholder level
For minority shareholders, ensuring representation at shareholders meetings is most critical. Minority shareholders can request that the constitutional documents require their representation at a shareholders meeting for a quorum to be validly constituted. In respect of board meetings, minority shareholders can request that the constitutional documents provide that they are entitled to make a nomination for appointment to the board and require the other shareholders to vote in favour of such nomination. Minority shareholders can also request that the constitutional documents provide that for so long as they hold not less than a specified threshold (for example, 1%) of all the issued shares, they are entitled to nominate one person for election to the board. Alternatively, minority shareholders can request observer rights in terms of which they are entitled to appoint one observer to attend meetings of the board, who may observe proceedings at board meetings, but not speak or vote.
Insist on a “tag along” clause
It is important that a shareholders’ agreement and/or memorandum of incorporation contain what is known as a “tag along” clause. A tag along clause means that if a third party (A) offers to purchase equity in the company from a group of shareholders (B) but not the remaining shareholders (C), then C can insist that B only sells shares in the company to A if A acquires C’s shares on the same terms. This ensures that minority shareholders are afforded an opportunity to participate in any sales which the majority shareholders participate in and that minority shareholders are not forced to remain as shareholders in a company with a new majority shareholder.
Conclude a “voting pool” agreement
So-called “voting pool” agreements allow minority shareholders to agree with one another on “block voting” in terms of which they pool their shares and vote collectively on matters, thereby strengthening their voting position in the company.