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Shareholders Agreement


Shareholders Agreement | Bestar
Shareholders Agreement | Bestar

Shareholders Agreement


A shareholders' agreement (SHA) is a legally binding contract between the shareholders of a company. It sets out the terms and conditions under which the shareholders will conduct business, and can include provisions related to ownership, control, decision-making, dispute resolution, and exit mechanisms.


In Malaysia, a SHA is not a mandatory document, but it is highly recommended for all companies, especially private limited companies. This is because an SHA can help to protect the interests of the shareholders and the company, and can help to avoid disputes in the future.


The specific clauses that are included in a SHA will vary depending on the specific needs of the company and the shareholders. However, some common clauses that are included in SHAs in Malaysia include:

  • Ownership and control: This clause will typically set out the number of shares that each shareholder owns, and the voting rights that each shareholder has. It may also include provisions for deadlocks, such as a provision that allows a shareholder to buy out the shares of another shareholder in the event of a disagreement.

  • Decision-making: This clause will set out how decisions are made within the company, such as who has the authority to make decisions about the company's finances, operations, and strategic direction.

  • Dividends: This clause will set out how dividends are paid out to shareholders, and when and how often dividends are paid.

  • Transfer of shares: This clause will set out the terms and conditions under which shares can be transferred to another person. It may include provisions for pre-emption rights, which give other shareholders the right to buy the shares before they are offered to a third party.

  • Dispute resolution: This clause will set out how disputes between the shareholders are resolved. It may include a provision for mediation or arbitration.

  • Exit mechanisms: This clause will set out how shareholders can exit the company, such as through a buy-back by the company or a sale of shares to another shareholder.

It is important to note that a shareholders' agreement is a complex document, and it is advisable to seek professional advice before drafting or signing an SHA.


Here are some additional things to keep in mind when drafting a shareholders' agreement in Malaysia:

  • The SHA must be in writing and signed by all of the shareholders.

  • The SHA must be in accordance with the Companies Act 2016.

By having a shareholders' agreement, you can help to protect your interests and the interests of your company. It is a valuable tool that can help to avoid disputes and ensure the smooth running of your business.


Do Shareholders in a Malaysian Company Need a Shareholders Agreement


A shareholders' agreement (SHA) is not a mandatory document in Malaysia. However, it is highly recommended for all companies, especially private limited companies. This is because an SHA can help to protect the interests of the shareholders and the company, and can help to avoid disputes in the future.


Here are some of the reasons why shareholders in a Malaysian company should have a shareholders' agreement:

  • To clarify the ownership and control of the company. The SHA can set out the number of shares that each shareholder owns, and the voting rights that each shareholder has. This can help to avoid disputes in the future, such as disagreements about who has the authority to make decisions about the company.

  • To define the decision-making process. The SHA can set out how decisions are made within the company, such as who has the authority to make decisions about the company's finances, operations, and strategic direction. This can help to ensure that decisions are made in a fair and transparent manner.

  • To regulate the transfer of shares. The SHA can set out the terms and conditions under which shares can be transferred to another person. This can help to protect the interests of the shareholders, such as by preventing a shareholder from selling their shares to a competitor.

  • To resolve disputes. The SHA can set out how disputes between the shareholders are resolved. This can help to avoid costly and time-consuming litigation.

  • To provide for exit mechanisms. The SHA can set out how shareholders can exit the company, such as through a buy-back by the company or a sale of shares to another shareholder. This can help to ensure that shareholders are able to exit the company if they need to, such as if they retire or want to sell their shares.

Overall, a shareholders' agreement is a valuable tool that can help to protect the interests of the shareholders and the company. It is a highly recommended document for all companies, especially private limited companies.


If you are considering forming a company in Malaysia, or if you are already a shareholder in a Malaysian company, you should speak to a professional about the benefits of having a shareholders' agreement.


Does the Shareholders Agreement Bind New Shareholder


A shareholders' agreement (SHA) does not automatically bind a new shareholder. The SHA is a contract between the existing shareholders, and a new shareholder is not a party to the contract unless they agree to be bound by it.


However, the SHA can be made binding on a new shareholder by a process called "adherence". Adherence is a written agreement by the new shareholder to be bound by the terms of the SHA. The adherence must be signed by the new shareholder and all of the existing shareholders.


In Malaysia, it is common for SHAs to include a provision requiring new shareholders to adhere to the terms of the agreement. This provision is usually included in the section of the SHA that deals with the transfer of shares.


If a new shareholder does not adhere to the terms of the SHA, the existing shareholders may be able to take legal action against them. However, the success of such an action would depend on the specific terms of the SHA and the circumstances of the case.


It is important to note that even if a new shareholder does not adhere to the terms of the SHA, they may still be bound by some of the provisions of the agreement. For example, if the SHA contains a provision that prohibits the sale of shares to a competitor, the new shareholder may still be prohibited from selling their shares to a competitor, even if they did not adhere to the agreement.


If you are considering becoming a shareholder in a company with an existing SHA, you should carefully review the terms of the agreement to determine whether you are willing to be bound by them. You should also speak to a professional to get professional advice on the specific circumstances of your case.


How do Existing Shareholders Regulate the Entry of New Shareholder into the Company


Existing shareholders can regulate the entry of new shareholders into a company in a number of ways, including through a shareholders' agreement (SHA).

A SHA is a legally binding contract between the shareholders of a company. It can be used to set out the terms and conditions under which new shareholders can be admitted to the company.

Some of the ways that existing shareholders can regulate the entry of new shareholders through a SHA include:

  • Pre-emption rights: This gives existing shareholders the right to buy new shares before they are offered to the public. This can help to prevent new shareholders from gaining control of the company without the consent of the existing shareholders.

  • Right of first refusal: This gives existing shareholders the right to match any offer for the sale of shares by another shareholder. This can help to prevent new shareholders from acquiring shares from existing shareholders without the consent of the other shareholders.

  • Drag-along rights: This gives existing shareholders the right to force a shareholder who wants to sell their shares to sell them to the company or to a third party that has been approved by the existing shareholders. This can help to prevent a shareholder from selling their shares to a competitor or to someone who would not be in the best interests of the company.

  • Tag-along rights: This gives existing shareholders the right to sell their shares to the same third party that is buying shares from another shareholder. This can help to prevent existing shareholders from being diluted by the sale of shares to a third party.

In addition to these specific rights, a SHA can also include more general provisions that regulate the entry of new shareholders, such as requiring the approval of the existing shareholders for any new shareholder or limiting the number of shares that can be held by any one shareholder.

The specific provisions that are included in a SHA will depend on the specific needs of the company and the shareholders. However, a well-drafted SHA can be an effective way for existing shareholders to regulate the entry of new shareholders and to protect their interests.


Does the Shareholders Agreement Supersede the Constitution


In Malaysia, a shareholders' agreement (SHA) does not automatically supersede the company's constitution. The constitution is a document that sets out the rules and regulations of the company, and it is a public document that is registered with the Companies Commission of Malaysia (CCM). The SHA, on the other hand, is a private document that is not registered with the CCM.


However, the SHA can supersede the constitution if it is specifically stated in the SHA. This is called a "conflicts clause". The conflicts clause will typically state that, in the event of any conflict between the provisions of the SHA and the constitution, the provisions of the SHA will prevail.


It is important to note that even if the SHA does supersede the constitution, the constitution will still have some legal effect. For example, the constitution will still govern the relationship between the company and its shareholders, and it will still be binding on the company.


The decision of whether to include a conflicts clause in a SHA is a complex one, and it should be made on a case-by-case basis. If you are considering including a conflicts clause in your SHA, you should speak to a professional to get professional advice on the specific circumstances of your case.


Here are some additional things to keep in mind about the relationship between a shareholders' agreement and a company's constitution in Malaysia:

  • The SHA cannot override the provisions of the Companies Act 2016.

  • The SHA cannot be used to circumvent the requirements of the Companies Act 2016.

  • The SHA cannot be used to discriminate against any shareholder.

If you are a shareholder in a Malaysian company, you should be aware of the relationship between the SHA and the constitution. You should also be aware of the limitations of the SHA. If you have any questions about the SHA or the constitution, you should speak to a professional.


What are the Common Clauses in a Shareholders Agreement in Malaysia


The common clauses in a shareholders' agreement (SHA) in Malaysia vary depending on the specific needs of the company and the shareholders. However, some common clauses that are included in SHAs in Malaysia include:

  • Ownership and control: This clause will typically set out the number of shares that each shareholder owns, and the voting rights that each shareholder has. It may also include provisions for deadlocks, such as a provision that allows a shareholder to buy out the shares of another shareholder in the event of a disagreement.

  • Decision-making: This clause will set out how decisions are made within the company, such as who has the authority to make decisions about the company's finances, operations, and strategic direction.

  • Dividends: This clause will set out how dividends are paid out to shareholders, and when and how often dividends are paid.

  • Transfer of shares: This clause will set out the terms and conditions under which shares can be transferred to another person. It may include provisions for pre-emption rights, which give other shareholders the right to buy the shares before they are offered to a third party.

  • Dispute resolution: This clause will set out how disputes between the shareholders are resolved. It may include a provision for mediation or arbitration.

  • Exit mechanisms: This clause will set out how shareholders can exit the company, such as through a buy-back by the company or a sale of shares to another shareholder.

  • Confidentiality: This clause will set out the obligations of the shareholders to keep information about the company confidential.

  • Non-competition: This clause will prohibit shareholders from competing with the company after they leave.

  • Right of first refusal: This clause gives existing shareholders the right to match any offer for the sale of shares by another shareholder.

  • Drag-along rights: This clause gives existing shareholders the right to force a shareholder who wants to sell their shares to sell them to the company or to a third party that has been approved by the existing shareholders.

  • Tag-along rights: This clause gives existing shareholders the right to sell their shares to the same third party that is buying shares from another shareholder.

These are just some of the common clauses that are included in SHAs in Malaysia. The specific clauses that are included in a SHA will depend on the specific needs of the company and the shareholders. It is important to seek professional advice when drafting or signing a shareholders' agreement.


How Bestar can Help


Bestar is an accounting firm in Malaysia that specializes in corporate accounting. We can help you with all aspects of your company's accounting, including preparing financial statements, filing taxes, and providing business advisory services.


Here are some of the ways that Bestar can help you with your shareholders' agreement in Malaysia:

  • Help you draft and negotiate your shareholders' agreement: Bestar can help you draft and negotiate your shareholders' agreement. We can ensure that the agreement is clear, concise, and enforceable.

  • Advise you on how to amend your shareholders' agreement: If you need to amend your shareholders' agreement, Bestar can advise you on the process. We can help you draft the amendment and ensure that it is properly executed.

Bestar is a reputable accounting firm with a team of experienced accountants who are knowledgeable about shareholders' agreements. We can help you with all aspects of your shareholders' agreement, from drafting to negotiating.


Here are some additional information about Bestar:

  • We are a full-service accounting firm with office in Kuala Lumpur.

  • We have a team of experienced accountants who are specialized in corporate accounting.

  • We have a proven track record of success in helping businesses with their accounting needs.

If you are looking for help with your shareholders' agreement in Malaysia, Bestar is a good option to consider. Contact us today!

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