Does one really need Shareholders’ agreement, or having a Memorandum and Articles of Association would be enough for proper management of a Cyprus Company? How can the rights of each of the shareholders be protected in a Company? What are the consequences of the deadlock and what mechanisms can one use to resolve a conflict among shareholders? These are some of the questions that are often being asked by the entrepreneurs at the stages of incorporation of the company in Cyprus or at the stage when they seek for partners and investors, or upon sale of existing shares or obtainment of new shares, as well as during daily operation of such a company and upon difficulties or conflicts with the other stakeholders.

This article will give a general understanding of the nature of the Shareholders’ agreement and a Memorandum and Articles of Association of a Cyprus company, look in depth at the main topics covered by each respectively, and attempt to compare the utility of each.

First of all, the constitutional document of the Cyprus Company consists of the Memorandum of Association (the “Memorandum”) and The Articles of Association (the “Articles”).

Generally speaking, the Memorandum simply states to the public about the objects of the company and lists the individuals who want to subscribe for the shares, while the Articles play the role of the regulations of the corporate entity’s internal arrangements and management of the company, and thus, arguably, play a more important role.

Shareholders’ agreement, on the other hand, is not a constitutional document of a Cyprus company and is a contractual arrangement between the members. The purpose of the Shareholders’ agreement is that of an independent membership agreement binding the shareholders to act or vote in a specific manner on internal corporate matters.

If we look at the matters that are governed by the Articles, one could see that usually the Articles contain the following provisions on:
• The process of the appointment of the directors and the allocation of management powers of the board;
• Process of the conduct of general meetings (organisation of meetings and voting);
• The process and methods of payment of dividends;
• The process of allotment of shares;
• Class rights attached to each type of the shares;
• The procedure that one shall follow upon transfer of shares;
• The process of alteration of the share capital;
• Managing director powers and duties;
• The duties of the secretary of the Company;
• Accounts and audit of accounts;
• Winding-up provisions.

Needless to say, any stipulations within the Articles that are inconsistent with the provisions of the Companies Law (CAP 113) will be held invalid.

On the other hand, a Shareholders’ agreement is a flexible contractual instrument, that may secure contractual arrangements between all or certain shareholders, or between the company and all (or certain) shareholders.

Shareholders’ agreement could include internal management and other issues such as:
• The appointment and removal of directors by certain members or entitlement of shareholders to be designated as directors;
• Dispute resolution mechanisms such as submission of contentious issues to mediation or arbitration;
• Minority protection measures whereby minority shareholders are safeguarded against decisions by majority shareholders which are prejudicial to the former’s best interests;
• Means by which deadlock situations might be resolved in general meeting or at board of directors level;
• Dilution of directors decision-making powers;
• The means by which the sanctioning of new business activities to be undertaken by the company would be effected;
• The imposition of restrictions on the sale or transfer of shares;
• Conferring on protected shareholders certain controls over the management of the company e.g. entitling selected members to appoint representatives to the Board or to veto certain decisions or transactions;
• Restrictions as to the nature and business of the company;
• Certain obligations with regard to the declaration of dividends;
• Provision requiring unanimous consent or majority of shareholders for the purpose of approving company’s operations to be extended to new territories;
• The imposition of duties on shareholders to act in good faith pursuant to exercising their voting powers;
• The inclusion of a schedule of so-called “Reserved Matters” which are earmarked exclusively for consideration by the shareholders;
• Shareholders’ undertaking not to engage in any business activities which may be regarded as competing with those of the company (in terms of geographical and/or stipulated time constraints).

Thus, apart from being a very flexible instrument, Shareholders’ agreement, if wisely drafted, could become a great contractual device for achieving common strategies, that would secure consensus of the Shareholders.

Unlike the Articles, the Shareholders’ agreement is not a public document, and it could offer safeguards for all parties above and beyond the provisions in the Articles, and, most importantly, assist in agreeing on provisions solving the deadlock and other issues.

Authors of the Company Law book Alan Dignam & John Lowry say that “if the shareholders place a provision in the Articles that purports to a contract out of statutory provision, it will probably be invalid, however if they place the same provision outside the Articles in the shareholders’ agreement and either all the shareholders or a large majority of them are party to it, the provisions would be effective.“

Therefore, if wisely drafted, Shareholders’ agreement could be a useful and a flexible tool in safeguarding every party’s interests.

Marina Kharchenko
LLB, LLM, Advocate - Legal Advisor
www.pravo.com.cy
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