Brisbane business law and dispute specialists Results Legal share their insights and lessons from the Courtroom and boardroom.
Recently Results Legal reviewed over 100 business separation and shareholder dispute cases that we have been involved in over the years, across many industry segments. We wanted to distil and share the recurring legal and commercial issues and themes that emerged in these disputes.
The key issue
The key recurring issue across all disputes was Value & Price. As we see it, the single biggest opportunity for people in business to avoid or reduce the severity and cost of business separation and shareholder/partnership disputes is to have a customised shareholders’ agreement in place.
Must-have inclusions for a shareholders agreement
It must include a fair, current and robust process for determining value and price.
It should also:
- clarify responsibilities and expectations upfront;
- provides a clear path for dispute resolution; and
- effectively facilitate ownership succession.
A customised shareholders’ agreement will set you up for a successful business relationship and mitigate the risk of costly and disruptive disputes. From our experience and review, 80% of shareholders agreements do not have effective valuation clauses or methodologies or other key provisions to deal with ownership succession and business separations. If you operate a business via a partnership, or have multiple shareholders, and do not have an agreement in place, you should adopt one.
Not all shareholders’ agreements are made equal
If you have a shareholders’ agreement in place – you are doing well. The next question is “how effective is the agreement in the event of a business separation/ exit and can you rely on it when the time comes?” You should have your agreements reviewed regularly to ensure that they remain fit for purpose as your business evolves and can be relied upon when needed.
She won’t be right, mate
We frequently see problems arise where family or friends go into business together. The tendency is to put off awkward conversations about how a dispute or separation will be dealt with or take a ‘she’ll be right’ attitude. Unfortunately, time and again we see bitter disputes between friends and family which would have been avoided if a robust agreement had been in place at an early stage. It is too late once the dispute arises. Don’t delay formalising business arrangements with family or friends. Personal relationships are too important not to.
The best time to act is before a dispute arises
Whatever your situation, now is the best time to get your agreements reviewed or consider adopting a shareholders’ agreement. You should also take the opportunity to check with Advivo that you are using the best structure from a taxation and asset protection perspective. Results Legal is pleased to undertake a review of the shareholder agreements for Advivo clients, at no cost. This will provide you with certainty around your existing agreement, or identify any key changes to be made.
Want to find out more?
Results Legal will be presenting at Advivo’s October event: Setting Up, Scaling up, Checking up.
We will share the other lessons and takeaways from our review and provide practical advice that businesses should be following when setting up or scaling up, or at any stage along the business lifecycle. We look forward to seeing you there.