{"id":11042,"date":"2020-01-29T14:27:23","date_gmt":"2020-01-29T13:27:23","guid":{"rendered":"https:\/\/melo.no\/?p=11042"},"modified":"2023-09-27T17:35:55","modified_gmt":"2023-09-27T15:35:55","slug":"aksjonaeravtaler","status":"publish","type":"post","link":"https:\/\/melo.no\/en\/juridisk-innsikt\/selskapsrett\/aksjonaeravtaler\/","title":{"rendered":"When is it appropriate to enter into a shareholders\u2019 agreement, and what can it regulate?"},"content":{"rendered":"
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In addition to the articles of association, an agreement may be entered into between all or some of the shareholders in connection with the incorporation of the company or at a later stage. Such agreements may concern, for example, the company\u2019s business in general, the allocation of board seats, the company\u2019s dividend policy, or the shareholders\u2019 rights and obligations to transfer or acquire shares.<\/p>\n

In practice, shareholders\u2019 agreements can be of significant importance for how the company is run. Formally, such agreements will often regulate how the shareholders are to vote at the company\u2019s general meeting or how other shareholder rights are to be exercised.<\/p>\n

Not directly regulated by the Companies Act<\/h2>\n

Shareholders\u2019 agreements are not directly regulated by the Norwegian Companies Act. Legal issues relating to shareholders\u2019 agreements must therefore be resolved on the basis of general principles of contract law, viewed in light of the corporate law context. There are no formal requirements as to how a shareholders\u2019 agreement must be concluded, nor is it necessary for the agreement to be in writing.<\/p>\n

Various reasons for entering into a shareholders\u2019 agreement<\/h2>\n

There may be a number of reasons why shareholders choose to enter into a shareholders\u2019 agreement rather than regulate a matter through the company\u2019s articles of association. One reason may be that the company is a continuation of a collaboration that previously existed in another legal form, and that the shareholders\u2019 agreement is simply the former cooperation agreement, now adapted to govern the relationship within the framework of a limited liability company.<\/p>\n

Another reason may be that it is not possible to obtain the required majority to amend the articles of association, making a shareholders\u2019 agreement a more practical alternative. This is because amendments to the articles generally require the support of two-thirds of both the votes cast and the share capital represented at the general meeting. Through a shareholders\u2019 agreement, however, the interested shareholders may agree among themselves how they will act. If the shareholders who are party to the agreement formally or effectively control more than 50 percent of the voting rights at the general meeting, the agreement may have a significant influence on how the company is managed.<\/p>\n

A further reason for using a shareholders\u2019 agreement may be that the shareholders wish to establish an arrangement that cannot be implemented solely through the articles of association because the matter in question cannot legally be regulated in the articles. However, given the increased flexibility of the Companies Act, this need is generally less significant than it was in the past.<\/p>\n

A fourth reason may be that the shareholders do not want a special arrangement to become publicly known. In such cases, regulation through the articles of association is not suitable. Unlike articles of association, shareholders\u2019 agreements are not registered in the Register of Business Enterprises. As a result, shareholders\u2019 agreements are often known only to the parties involved.<\/p>\n

Formally, a shareholders\u2019 agreement regulates only the relationship between the shareholders who are parties to it. As a general rule, the company itself is not bound by a shareholders\u2019 agreement. Nor is the board of directors bound by such agreements; the board is bound only by legislation, the articles of association, and any instructions issued by the general meeting or set out in board regulations. Likewise, shareholders who are not parties to the agreement are generally not bound by it. The same principle normally applies to a purchaser of shares from a shareholder who was party to the agreement. For the shareholders who are parties to the agreement, however, the agreement is generally binding, just like any other contract.<\/p>\n

A shareholders\u2019 agreement may nevertheless affect the company if the company itself is a party to the agreement or if the agreement is interpreted as conferring rights upon the company.<\/p>\n

Contractual regulation of exit arrangements<\/h2>\n

Shareholders may have a need for more detailed regulation of the right or obligation to dispose of shares. In practice, this is often achieved through a shareholders\u2019 agreement, although such rights and obligations can frequently also be incorporated into the articles of association. There are many different forms and variations of such provisions. Some of the most common are outlined below.<\/p>\n