A. Negotiated Protections

Transcription

1 A. Negotiated Protections with other provisions of the Act. Similarly, section 7.32 would not have to be relied upon to validate typical buy-sell agreements among two or more shareholders or the covenants and other terms of a stock purchase agreement entered into in connection with the issuance of shares by a corporation. Hence, 7.32 is a safe harbor for shareholders agreements that contain provisions that conflict or may conflict with the governing corporate law statute. In other words, a shareholders agreement that does not comply with 7.32 is not necessarily invalid. The analogous provision under the DGCL is 350. This section provides that a written agreement between shareholders of a close corporation is not invalid on the ground that it so relates to the conduct of the business and affairs of the corporation as to restrict or interfere with the discretion or powers of the board of directors. 7 Exercise 12.3 Below is a proposed Shareholders Agreement drafted by Beckman s counsel. Assume WKS is a Delaware corporation and its charter does not provide for cumulative voting or preemptive rights. 1. You represent Sjostrom. What comments do you have on the agreement? 2. Why didn t Beckman include preemptive rights? 3. What s the purpose of section 5 of the Agreement? SHAREHOLDERS AGREEMENT This Shareholders Agreement (this Agreement ) is dated March 9, 2008 between Nancy G. Beckman ( Beckman ) and William K. Sjostrom, Jr. ( Sjostrom ), (collectively, the Shareholders ), and WKS Corp. (the Company ). Background A. Simultaneously with the signing of this Agreement, Beckman is making a minority investment in the Company s common stock. B. To induce Beckman to make such investment, the Company and Sjostrom, its majority shareholder, have agreed to execute this agreement, which provides various rights to Beckman. 7. DGCL

2 Chapter Twelve Minority Shareholder Protections Accordingly, the parties agree as follows: 1. Board of Directors 1.1 Size of Board. Sjostrom agrees to vote, or cause to be voted, all shares of common stock of the Company (the Shares ) owned by him, or over which he has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that the size of the Company s board of directors (the Board ) shall be set and remain at two directors. 1.2 Board Composition. Sjostrom agrees to vote, or cause to be voted, all Shares owned by him, or over which he has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, one person designated by Beckman shall be elected to the Board (the Beckman Director ). 1.3 Removal of Board Members. Sjostrom also agrees to vote, or cause to be voted, all Shares owned by him, or over which he has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that: (a) the Beckman Director may not be removed from office unless (i) such removal is directed or approved by Beckman; (b) any vacancies created by the resignation, removal or death of the Beckman Director shall be filled pursuant to the provisions of this Section 1; and (c) the Beckman Director shall be removed upon Beckman s request. Sjostrom agrees to execute any written consents required to perform the obligations of this Agreement, and the Company agrees at the request of Beckman to call a special meeting of stockholders for the purpose of electing directors. 1.4 Matters Requiring Beckman Director Approval. The Company shall not, without approval of the Board of Directors, which approval must include the affirmative vote of the Beckman Director: (a) make any loan or advance to Sjostrom or any affiliate of Sjostrom; (b) hire, terminate, or change the compensation of the executive officers, including approving any option grants or stock awards to executive officers; (c) change the principal business of the Company, enter new lines of business, or exit the current line of business; (d) effect any voluntary liquidation or dissolution of the Company; 544

3 A. Negotiated Protections (e) effect any sale, lease, assignment, transfer or other conveyance of all or substantially all of the assets of the Company, or any consolidation or merger involving the Company, or any reclassification or other change of any stock, or any recapitalization of the Company; (f) create any Board committee; or (g) issue any security. 1.5 Meetings. The Board of Directors shall meet at least quarterly in accordance with an agreed-upon schedule. The Company shall reimburse the Beckman Director for all reasonable out-of-pocket travel expenses incurred (consistent with the Company s travel policy) in connection with attending Board meetings. 2. Information and Observer Rights. 2.1 Information. The Company shall deliver to Beckman: (a) as soon as practicable, but in any event within 90 days after the end of each fiscal year of the Company, (i) a balance sheet as of the end of such year, (ii) statements of income and of cash flows for such year, and (iii) a statement of stockholders equity as of the end of such year, all such financial statements audited and certified by independent public accountants of regionally recognized standing selected by Beckman; (b) as soon as practicable, but in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of the Company, unaudited statements of income and of cash flows for such fiscal quarter, and an unaudited balance sheet as of the end of such fiscal quarter, all prepared in accordance with GAAP; (c) as soon as practicable, but in any event 30 days before the end of each fiscal year, a budget and business plan for the next fiscal year (collectively, the Budget ), prepared on a monthly basis, including balance sheets, income statements, and statements of cash flow for such months and, promptly after prepared, any other budgets or revised budgets prepared by the Company; (d) such other information relating to the financial condition, business, prospects, or corporate affairs of the Company as Beckman may from time to time request. 2.2 Inspection. The Company shall permit Beckman to visit and inspect the Company s properties; examine its books of account and records; and discuss the Company s affairs, finances, and accounts with its officers, during normal business hours of the Company as may be reasonably requested by Beckman. 3. Employment with the Company. 3.1 Beckman Employment. The Company will employ Beckman on the terms and conditions set forth in this Agreement. 545

4 Chapter Twelve Minority Shareholder Protections 3.2 Position. Beckman will be the vice president of sales for the Company and in such capacity will supervise, direct, and control the Company s sales operations and will perform such specific duties as the Board may from time to time request. 3.3 Compensation. The Company shall pay Beckman a salary of $20, per month. Such salary will be adjusted for the calendar year following the date of this Agreement, and for each succeeding calendar year thereafter, to reflect changes in the cost of living. Effective January 1st of the year following the date of this agreement, and January 1st of each succeeding calendar year, the Shareholders compensation will be increased by a percentage equal to the percentage increase in the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index (1982/84 = 100), All Urban Consumers, All Items, U.S. City Average for the one-year period ending September 30 of the immediately preceding calendar year. 3.4 Fringe Benefits. In addition to salary, the Company will provide Beckman with group health insurance for herself and immediate family members and with $1 million of group term life insurance. 3.5 Vacations. Beckman, as an employee, will be entitled to a vacation of 12 weeks during each calendar year. Unused vacation will carry over from year to year. 3.6 Illness. Beckman will receive full compensation for any period during which she is unable to perform her duties as a result of illness or injury. 4. Put Options. 4.1 Death. For the 180 days immediately following Beckman s death, the personal representative of Beckman s estate shall have the option to require the Company to buy all Shares formerly owned by Beckman at the price and on the terms provided for in this Section 4. In the event of Beckman s death, unless the context otherwise requires, the term Beckman in the Agreement shall be deemed to include such personal representative. 4.2 Disability. For the 180 days immediately following the disability of Beckman, Beckman shall have the option to require the Company to buy all of her Shares at the price and on the terms provided in this Section 4. For purposes of this Agreement, Beckman will be considered disabled if she is (i) eligible for benefits for more than 50 percent disability under any group or individual disability insurance policy (as confirmed by an insurance company), or (ii) unable to perform on a full-time basis for a period of 90 consecutive days the essential functions of her position with the Company. 4.3 Termination of Employment. For 180 days following the termination of Beckman s employment with the Company for any reason, Beckman shall have the option to require the Company to buy all of her Shares at the price and on the terms provided in this Agreement. 546

5 A. Negotiated Protections 4.4 Exercise. A put option under this Section 4 shall be exercised, if at all, by delivery of written notice of exercise to the Company within the above-prescribed period. 4.5 Purchase Price. The purchase price for Shares sold under this Section 4 shall be the value per share determined by appraisal as of the last day of the month immediately preceding the exercise of the option and shall be based on the greater of the Company s liquidation or going concern value. The appraiser shall be selected by Beckman and the cost of the appraisal shall be paid by the Company. The appraiser shall not apply a marketability or minority discount in determining the price per share. 4.6 Payment Terms. The Company shall pay Beckman 50 percent of the purchase price when the sale of Shares is closed. The remaining balance of the purchase price will be paid in accordance with the terms of a promissory note of the Company providing that the principal amount is payable in two equal annual installments, including interest on the unpaid balance at the prime rate of interest as quoted in the Wall Street Journal for the last business day prior to the closing plus 2 percent. The first installment will be due one year after the closing, and the second installment will be due on the same day of the next year. The promissory note will provide that if any installment is not paid when due, the holder may declare the entire remaining balance, together with all accrued interest, immediately due and payable. Full or partial prepayment of the promissory note will be permitted at any time, provided that any partial payment will not affect the amount or regularity of payments coming due thereafter. Payment of the promissory note will be secured by a stock pledge agreement in a form reasonably acceptable to Beckman. The collateral will be the Shares being purchased or their equivalent. 5. Tag-Along Right. If Sjostrom proposes to sell any of his Shares, he must give written notice of the sale to Beckman, at least 30 days prior to its closing. The notice must indicate the percentage of the total number of shares of the Company held by Sjostrom that will be sold or transferred and the proposed price and terms. Within 20 days after receipt of this notice, Beckman may elect to sell the same percentage of her Shares at the price and on the terms specified in the notice; provided, however, that if Sjostrom is proposing to sell Shares amounting to a majority stake in the Company, Beckman may elect to sell all of her Shares at the price and on the terms specified in the notice. If Beckman makes such election, Sjostrom must purchase or otherwise acquire the shares in a transaction closed simultaneously with Sjostrom s sale of Shares unless the person purchasing Sjostrom s shares agrees to purchase Beckman s shares in the same transaction. 547

6 Chapter Twelve Minority Shareholder Protections 6. General Provisions. 6.1 Entire Agreement. This Agreement is the final, complete, and exclusive statement of the parties agreement on the matters contained in this Agreement and supersedes all prior communications, understandings, and agreements between the parties related thereto. 6.2 Modification and Waiver. No purported amendment, modification, or waiver of any provision of this Agreement shall be binding unless set forth in a writing signed by both parties (in the case of amendments and modifications) or by the party to be charged (in the case of waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Agreement or of the same circumstance or event upon any recurrence thereof. 6.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona without regard to the rules of conflict of laws of such state or any other jurisdiction. 6.4 Successors and Assigns. This Agreement shall be binding upon and be enforceable by the parties to this Agreement and their respective heirs, legal representatives, successors and assigns, who are obligated to take any action which may be necessary or proper to carry out the purpose and intent hereof. 6.5 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) personal delivery to the party to be notified; (ii) when sent, if sent by electronic mail or facsimile during the recipient s normal business hours, and if not sent during normal business hours, then on the recipient s next business day; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) business day after the business day of deposit with a nationally recognized overnight courier, freight prepaid, specifying next-day delivery, with written verification of receipt. All notices permitted or required hereunder shall be in writing and shall be deemed to have been delivered when received if hand delivered (including delivery by commercial or private messenger with signed receipt) or two days after depositing, if placed in the U.S. mails for delivery by registered or certified mail, return receipt requested, postage prepaid, and addressed to the appropriate party at the address set forth on the first page hereof. Addresses may be changed by written notice given pursuant to this section. 6.6 Consent to Specific Performance. The parties hereto acknowledge that it is impossible to measure in money the damages which would accrue to a party by reason of failure to perform any of the obligations hereunder. Therefore, if any party shall institute any action or 548

7 B. Immutable Statutory Protections proceeding to enforce the provisions hereof, any party against whom such action or proceeding is brought hereby waives any claim or defense therein that the plaintiff has an adequate remedy at law. To evidence the parties agreement to this Agreement s provisions, they have executed and delivered this Agreement on the date set forth in the preamble. WKS Corp. By: Its: William K. Sjostrom, Jr. Nancy G. Beckman B. IMMUTABLE STATUTORY PROTECTIONS In this section we cover the limited number of mandatory statutory provisions that can be viewed as protecting minority shareholders. 1. Inspection Rights Both the MBCA and DGCL afford shareholders rights to inspect a corporation s books and records. Specifically, MBCA 16.02(a) entitles a shareholder to inspect and copy, among other things, the corporation s charter, bylaws, shareholder meeting minutes from the last three years, written communications from the corporation to its shareholders from the last three years, and a list of current directors and officers. Additionally, per MBCA 16.02(c) a shareholder can inspect and copy excerpts from board meeting minutes, accounting records, and the shareholder list provided the shareholder seeks to do so in good faith and for a proper purpose and the records the shareholder wants to inspect are connected to the purpose. The Official Comment to provides that [a] proper purpose means a purpose that is reasonably relevant to the demanding shareholder s interest as a shareholder. Section 220 is the analogous DGCL provision. Under this section, shareholders have the right to inspect and copy for any proper purpose [t]he 549