Companies act 2008 and pre-existing shareholders agreements
On 1 May 2013 will your company's shareholders agreement be worth the paper that it is written on, because after this date most of what is contained in current shareholders agreements could automatically be rendered void.
This is an important corporate law consideration which must be addressed by all South African companies and their shareholders which rely on shareholders agreements concluded prior to the commencement of the Companies Act 2008 (new Companies Act).
Historical use of shareholders agreements
In terms of the Companies Act 1973 (old Companies Act) a company's constitutional documents consisted of its memorandum of association and articles of association. In addition to these statutory documents, shareholders often concluded an additional shareholders agreement to regulate the internal affairs of the company.
A shareholders agreement typically provided that in the event of any conflict between the company's articles of association and the shareholders agreement, the shareholders agreement would be the document that takes precedence. Shareholders therefore regularly used shareholders agreements to regulate important aspects of the company without the need to amend its articles of association and, by doing so, make the provisions public.
Shareholders agreements under the new companies act
The new Companies Act has, however, dramatically changed the possible scope and effectiveness of not only the new shareholders agreements concluded in terms of the new Companies Act, but also shareholders agreements which were concluded prior to the new Companies Act's commencement date on 1 May 2011.
In terms of the new Companies Act, all shareholders agreements must be consistent not only with the provisions of the act itself, but also with companies constitutional documents, namely the memorandum of incorporation. Should there be any inconsistency between the shareholders agreement and a provision of the new Companies Act or memorandum of incorporation, the provision contained within the shareholders agreement shall be void.
A provision in a shareholders agreement which provides that the shareholders agreement will take precedence over the act or memorandum of incorporation shall itself be void and shall not provide any assistance to the shareholders.
Companies which were incorporated under the old Companies Act and which had pre-existing shareholders agreements are, however, provided with a two year transitional period which ends of 30 April 2013.
During the transitional period, pre-existing companies may update their constitutional documents to comply with the provisions of the new Companies Act, and during such time should a shareholders agreement conflict with the provisions of the new Companies Act, or the company's articles of association, the provisions of the shareholders agreement shall take precedence.
On 1 May 2013, any provision in a pre-existing shareholders agreement which directly conflicts with the new Companies Act or the company's memorandum of incorporation will be void.
A company which takes no steps to align its current articles of association and shareholders agreement with the provision of the new Companies Act may find itself in a situation where most, if not all, provisions contained within the shareholders agreement are void as they conflict with the company's articles of association which is automatically deemed to be its new memorandum of incorporation for the purposes of the new Companies Act.
Important provisions which are ordinarily contained within the shareholders agreement which may be void include provisions restricting or allowing the alteration or conversion of share capital, provisions regulating company meetings, provisions granting minority shareholders or specified shareholders rights to appoint directors to the company's board, minority protection provisions including provisions which limit the board of directors powers, and provisions regulating borrowing powers and the determination and payment of dividends to shareholders.
Where to from here?
What can be done to ensure that essential provisions contained within a shareholders' agreement are not rendered void?
It will be necessary to determine where conflicts currently exist between the new Companies Act, articles of association and shareholders agreement. Once conflicts have been identified, it will be necessary to determine which matters are now classified as alterable or non-alterable provisions in terms of the Companies Act.
Should any of these matters be classified as alterable or non-alterable provisions within the new Companies Act, it will not be possible for the shareholders to regulate these matters in a shareholders agreement, as non-alterable provisions cannot be altered at all, and alterable provisions can only be altered in the company's memorandum of incorporation and not in a shareholders agreement.
Note: I have written a note on shareholders agreements, and alterable or non-alterable provisions, here.
Once this analysis has been done it will then be necessary to update the company's memorandum of incorporation to deal with all alterable provisions which can only be altered in the memorandum of incorporation, and then draft an amended shareholders agreement relating to the remaining company matters.
- Companies Act, No. 61 of 1973 (old Companies Act)
- Companies Act, No. 71 of 2008 (new Companies Act)