OUR GREAT MINDS

by Claudius Du Plooy

9 Important Questions About Unanimous Shareholder Agreements

2. How is a USA Drafted?

To ensure unanimity with respect to a USA, all registered shareholders of all classes, whether voting or non-voting, common or preferred, must be parties to the USA at all times. If a shareholder agreement is not unanimous, it will be treated as a regular commercial contract and, therefore, subject to the articles and by-laws of the company and the provisions of the relevant corporate statute. To avoid confusion, a USA should be consistent with the company’s articles and by-laws. If it is the intention of the shareholders that a USA will govern, consider including a provision in both the by-laws and the USA that in the event of any inconsistency between them, the USA will prevail. A USA also benefits from the “Deemed Party” rule. The rule applies when shares of a company governed by a USA are transferred, the transferee is deemed to be a party to the USA provided a reference to the USA is noted clearly on any share certificate representing the transferred shares. Despite this rule, it is considered good practice to include in the USA that, as a condition of any share transfer, the transferee must agree in writing to be bound by the USA. Purchasers of newly issued shares from treasury should also be required, as a condition of any issuance of shares from the treasury of the company, to agree in writing to be bound by the USA.

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