Draft Shareholders Agreement Online
A Shareholders’ Agreement (SHA) is a legally binding document that outlines the rights, obligations, and responsibilities of shareholders in a company. SHA is a critical governance tool, especially in private limited companies, joint ventures, family-owned businesses, and investor-backed entities. It complements the Articles of Association (AoA) and addresses gaps left by corporate statutes. In India, the SHA is governed by principles under the Indian Contract Act, 1872, and is enforceable to the extent that it does not conflict with the Companies Act, 2013, or other statutory regulations. A well-drafted shareholders' agreement (SHA) protects minority interests, outlines exit strategies, clarifies management roles, and prevents deadlocks and disputes.
What is a Shareholders Agreement?
A Shareholders’ Agreement (SHA) is a contract between the shareholders of a company that governs the internal operations, rights, obligations, and decision-making processes related to the company’s affairs. Unlike a Share Purchase Agreement (SPA) that focuses on the transfer of shares, an SHA emphasizes post-investment governance, protection of minority interests, distribution of profits, and strategic control. It supplements the AoA but does not override statutory provisions.
Legal Framework Governing SHAs in India
While SHAs are not explicitly defined under the Companies Act, 2013, they are governed by:
- Indian Contract Act, 1872
- Companies Act, 2013
- Securities and Exchange Board of India (SEBI) Regulations (in listed entities)
- Foreign Exchange Management Act (FEMA), 1999 (for foreign investors)
- Judicial Precedents
Parties to a Shareholders’ Agreement
1. Existing Shareholders
These are individuals or entities who hold shares in the company prior to the execution of the Shareholders’ Agreement. It can be
- Founders or Promoters
- Strategic Investors
- Venture Capital or Private Equity Investors
- Family Members
2. New or Incoming Investors
These are shareholders who acquire their stake at the time of or after the execution of the SHA. It includes:
- Angel Investors
- Foreign Investors
- Institutional Investors: These include private equity firms, venture capital funds, and hedge funds that invest based on defined return objectives and governance rights.
- Joint Venture Partners: Domestic or international business entities collaborating through equity participation to pursue common business goals.
3. The Company Itself
In many cases, the company becomes a party to the SHA as an independent entity. Although it is a separate legal person, the company ensures that it is contractually bound to fulfill certain obligations, such as:
- Recognizing and implementing shareholder rights and board nominations.
- Maintaining the confidentiality of proprietary or sensitive information.
- Enforcing non-compete and non-solicitation clauses.
- Complying with regulatory and reporting obligations under applicable laws.
Key Clauses in a Shareholders Agreement (SHA)
The Shareholders’ Agreement includes the following clauses:
1. Preamble and Recitals
This section gives an overview of the background and purpose of the agreement. It identifies:
- The parties involved are the shareholders and the company.
- The nature of the investment or partnership.
- The objective behind agreeing is to regulate shareholding, control, and exit.
2. Definitions and Interpretations
This section features a clear set of definitions that prevent ambiguity and ensure uniform interpretation of terms in the agreement. Common terms include:
- “Promoter”, “Investor”, “Affiliate”, “Material Breach”, “Exit Event”, “Tag-Along Right”, etc.
- Rules of interpretation, such as singular/plural meanings, inclusion of statutory amendments, and use of headings.
3. Shareholding Structure
This clause outlines the capital structure and equity pattern:
- Existing shareholding before execution of the agreement.
- Post-investment share distribution, including different classes of shares.
- Any contemplated changes in capital due to future investment rounds or share splits.
4. Governance and Board Rights
This clause governs the management and control framework of the company, which includes:
- Board composition: Right of shareholders to nominate directors.
- Quorum requirements: Presence of specified shareholders or directors for valid meetings.
- Affirmative vote matters: Issues requiring special consent (e.g., mergers, borrowing beyond limits, change in business).
- Formation of sub-committees such as audit, remuneration, and their powers.
Reserved matters sometimes include:
- Issuance of further shares.
- Transfer or disposal of substantial assets.
- Declaration of dividends.
- Amending constitutional documents.
5. Transfer of Shares
This clause is drafted to control the flow of ownership and protect shareholder interests. It includes:
- Right of First Refusal (ROFR): If a shareholder wishes to sell their shares, they must first offer them to existing shareholders on the same terms and conditions.
- Right of First Offer (ROFO): The selling shareholder must offer their shares to existing shareholders before approaching external buyers.
- Tag-Along Rights: If a majority shareholder sells their stake to a third party, minority shareholders have the right to join the transaction and sell their shares on the same terms.
- Drag-Along Rights: Majority shareholders can compel minority shareholders to sell their shares in the case of the acquisition of the company.
- Lock-In Period: A restriction on the sale of shares by specified shareholders (e.g., promoters or key investors) for a defined period to ensure commitment and stability.
6. Funding and Capitalization
- This clause specifies the mechanisms for raising additional capital, which include:
- Commitments from shareholders for future funding.
- Provisions for rights issues or preferential allotments.
- Anti-dilution protections: Adjustment of shareholding if new shares are issued at a lower price than earlier investments.
7. Dividend Policy
This clause outlines how profits will be distributed; it defines
- Whether and when dividends will be declared.
- Minimum dividend payout ratio, if any.
- Priority of dividends for different classes of shareholders.
- Reinvestment provisions, especially for growth-stage companies.
8. Exit Rights
This is the most crucial for investors; this clause outlines scenarios and procedures for exiting the company:
- Initial Public Offering (IPO): Provision for automatic conversion of preference shares and lock-in periods.
- Strategic sale: Rights of shareholders in case of merger, acquisition, or sale of substantial assets.
- Put/Call Options: Right to compel the company or other shareholders to buy/sell shares at a predetermined valuation.
- Valuation methods: Mechanisms such as DCF, EBITDA multiples, or third-party valuation.
9. Confidentiality and Non-Compete
This clause is drafted to protect the company’s proprietary information and market position. It clearly:
- Defines confidential information.
- Obligations of parties to maintain secrecy, even post-termination.
- Exceptions for disclosures required by law, regulators, or courts.
- Restrictions on shareholders from engaging in competing businesses or soliciting employees/customers, typically within a defined territory and time frame.
10. Covenants
These are ongoing commitments made by shareholders and the company to maintain compliance and discipline:
- Compliance with applicable laws, including the Companies Act, FEMA, SEBI regulations, and sector-specific guidelines.
- Not to encumber or pledge shares without consent.
- Maintenance of statutory registers and timely ROC filings.
- Adherence to agreed-upon business plans and operational budgets.
11. Representations and Warranties
These are the assurances made by each party to validate their legal and financial position, which include that the:
- The company is legally incorporated and validly existing.
- Shares are free from encumbrances.
- Financial statements reflect an accurate and fair view of the company’s affairs.
- No ongoing litigation or undisclosed liabilities exist.
12. Governing Law and Dispute Resolution
This clause determines the jurisdiction and forum for resolving disputes. It includes:
Governing Law: Usually Indian law (or another mutually agreed jurisdiction)
Dispute Resolution Mechanism:
- Arbitration under the Arbitration and Conciliation Act, 1996
- Number of arbitrators (one or three)
- Seat and venue of arbitration (e.g., Mumbai, New Delhi)
- Language of proceedings
- Allocation of arbitration costs
13. Termination
This clause specifies conditions/events that would terminate the agreement; it can be either:
- Mutual consent.
- Occurrence of specified events: insolvency, fraud, prolonged deadlock, or breach.
- Regulatory order requiring the dissolution or winding up of the company.
14. Miscellaneous Clauses
- Entire Agreement: Declares the SHA as the complete agreement superseding prior discussions or term sheets.
- Amendment: Requires consent of a defined majority (e.g., 75% of shareholding) for any changes.
- Severability: Invalidity of any provision shall not affect the enforceability of the rest.
- Force Majeure: Suspension of obligations due to unforeseen, uncontrollable events such as war, natural disaster, or pandemic.
- Assignment: Restrictions on transferring rights and obligations without prior written approval.
- Execution in Counterparts: Allows the SHA to be signed in multiple original copies, each considered a valid part of the agreement.
Registration and Stamp Duty on Shareholders Agreement
Shareholders' Agreements are not mandatorily registered; however, they must be stamped in accordance with the applicable State Stamp Act. The stamp duty can range from ₹100 to 0.5% of the investment amount, depending on the state and the nature of rights granted.
If the SHA includes power of attorney, share transfer instruments, or asset sale provisions, additional stamp duty may apply.
Common Mistakes to Avoid While Drafting SHA
- Failing to update the Articles of Association (AoA) with key rights, such as Right of First Refusal (ROFR) or drag-along, makes them legally unenforceable.
- Unclear exit terms on timing, method, or valuation often lead to investor disputes.
- Missing details in arbitration clauses, such as the seat of arbitration or the number of arbitrators, can cause enforcement issues.
- Ignoring FEMA or SEBI rules can invalidate foreign or listed company investment terms.
- Courts may strike down non-compete clauses that are too wide in scope or duration.
Why Choose Kanakkupillai for Shareholders’ Agreements Drafting?
Looking to protect your shareholder rights, secure investor obligations, or regulate management control through a well-structured Shareholders’ Agreement? Kanakkupillai offers comprehensive legal support for drafting, negotiating, and executing Shareholders’ Agreements. Our services cover:
1. Customised Legal Drafting
At Kanakkupillai, we recognize that each company and shareholder relationship is unique. We don't rely on generic templates. Instead, our professionals draft Shareholders’ Agreements by aligning them with the Articles of Association and applicable laws, including the Companies Act, 2013, and SEBI/FEMA regulations.
2. Risk and Compliance Advisory
Our team conducts a thorough review of existing corporate documentation to identify and address:
- Inconsistencies between SHA and AoA
- Missing shareholder protections or exit clauses
- Regulatory breaches or future compliance risks
3. Expertise in Shareholding Structures
For multi-party or cross-border shareholder arrangements, we offer expert advice on:
- Minority protection rights
- Founder vesting schedules
- FDI-linked investment conditions
- FEMA-compliant capital structures
- Anti-dilution and liquidation preferences
4. End-to-End Execution Support
From initial negotiations to post-execution compliance, we help you in:
- Drafting and reviewing the SHA and related documents (board resolutions, amended AoA, etc.)
- Ensuring required filings with the Registrar of Companies (ROC) and, if applicable, the Reserve Bank of India (RBI)
- Providing legal opinions and support for dispute resolution or amendment processes
Frequently Asked Questions
What is the primary purpose of a Shareholders’ Agreement in a company incorporated in India?
A Shareholders’ Agreement (SHA) defines the rights, duties, and obligations among shareholders. It provides governance rules, decision-making structures, exit strategies, and dispute resolution mechanisms that are often not fully covered under the Companies Act or Articles of Association.Is a Shareholders’ Agreement legally binding in India?
Yes, an SHA is enforceable as a contract under the Indian Contract Act, 1872. However, any clause conflicting with the Companies Act, 2013, or AoA may be deemed unenforceable.Can a Shareholders’ Agreement override the Articles of Association (AoA)?
No. The AoA is a public and statutory document, while an SHA is a private contract. In case of conflict, the AoA prevails. Necessary rights in the SHA should be mirrored in the AoA to ensure enforceability.Can a foreign shareholder enter into an SHA with Indian shareholders?
Yes, but it must comply with the Foreign Exchange Management Act (FEMA), RBI pricing guidelines, sectoral caps, and must be reported via the FIRMS portal.What is the difference between ROFR and ROFO in a Shareholders’ Agreement?
• ROFR (Right of First Refusal): Existing shareholders get the chance to match an external buyer’s offer. • ROFO (Right of First Offer): The selling shareholder must first offer shares to existing shareholders before approaching external buyers.What happens if a Shareholders’ Agreement is silent on exit rights?
In the absence of clearly defined exit rights (such as an IPO, buyback, or third-party sale), investors may face significant delays and legal hurdles when exiting, especially in private companies with limited liquidity.What protections do minority shareholders get under an SHA?
SHAs can provide: • Board representation • Veto powers on key decisions • Tag-along rights • Information rights • Anti-dilution protection These safeguards protect minority interests from unilateral decisions by the majority of the shareholders.What are the common mistakes to avoid when drafting a Shareholders’ Agreement?
Common Mistakes include: • Not syncing the SHA with AoA • Ambiguous exit and valuation clauses • Ignoring FEMA/SEBI compliance for foreign or listed investors • Vague dispute resolution language • No survival period for warranties • Overly broad or unenforceable non-competesWhat makes Us Different

300+ Services
Relax at home, we take care of Tax/Compliance

Reasonable
competitive price with professional service delivery

Customer Satisfaction
Prioritize client satisfaction and expectations at every step

Google Reviews
99% of Customers rated us 5* in Google.

Turn Around Time
99% of services will be delivered on within timeline

Compliance
We manage 99.9% of compliance within due date