Thank you for your help before Could you please read clause below. Is it fair and stars practise in the UK? I find it unclear and some of the clause need more explanation. Thank you XXXXX1. You will be granted 2 options, the first over 44 ordinary shares, and the second over 56 ordinary shares. There are currently 400 shares in issue, and accordingly if you exercise both options in full, you would then hold a total of 100 shares out of aggregate total of 500 (on the basis that there are no intervening issues of shares or other adjustments to the share capital).2. The first option will become exercisable by you in full after the expiry of 18 months following the commencement of your employment. The second option will become exercisable by you in full in October 2017, or earlier if and to the extent that such exercise will not result in your holding more than 10% of the issued share capital of the Company.3. Your rights under the option agreements will lapse (to the extent to which they have not previously been exercised) when you cease to be a full time employee of the Company.4. The option exercise price will be £1 per share, i.e. the par value of the ordinary shares.5. It is our intention that the option right will qualify as a “Enterprise Management incentive” (EMI) option, which under current tax legislation is very advantageous for you when you come to exercise the option or sell shares which you have required under the option. However, there is no guarantee or warranty that the option will be EMI qualifying either at the time of grant or at any time in the future, such as when you come to exercise the option.6. It is possible that the Company will be liable to account for income tax and or national insurance contributions when you exercise the option and or sell shares acquired under the option. The option agreements will contain market standard provisions under which you will reimburse to the Company the amount of any such income tax and/or national insurance contributions for which the Company is liable.7. The number of shares over which you have option rights will be adjusted to preserve the economic benefit of your option in the event that there is a bonus issue, consolidation or other adjustment of the issued share capital which would affect the value of shares under option.Shareholder Arrangements1. Shares acquired by you as a result of exercise of the options will carry the same rights in relation to voting and dividends as other issued ordinary shares, on a pro-rata basis.2. New shares issued in the future will not be subject to pre-emption rights in favour of existing shareholders because the Board will wish to retain the ability to issue shares (on arms length terms) to potential investors in the future. However, all issued ordinary shares will be subject to pre-emption rights on any future transfer, so that all other shareholders will have the opportunity to acquire shares offered for sale by a shareholder on a pro-rata basis.3. Certain share transfers to close family members, family trusts or (in the case of a corporate shareholders) group companies will be permitted to take place not subject to the pre-emption provisions.4. If the holders of 50% plus of the issued shares wish to sell their shares to a third party, they will be entitled to do so without offering those shares to the other shareholders. In these circumstances, the majority shareholders have a drag-along right under which the minority shareholders can be obliged to sell their shares on the same basis, and the minority shareholders have a right to insist that their shares are acquired on the same basis (tag-along right).5. If having acquired shares as a result of the exercise of an option you were to leave the Company’s employment within a period of 4 years from the commencement of the arrangements, your shares would automatically be offered for sale to the Company at par value, unless the reason for the termination of employment was an unjustified dismissal by the Company or the result of illness/death. The Board would have a discretion in these circumstances to determine either that the enforced sale would not apply to all shares held by you, and or that the amount payable per share should be greater than the par value. The purpose of this provision, which is standard market practice, is to seek to ensure your long term commitment to the project, and that you do not voluntarily leave within a short period after exercising your share option.I hope that the proposed arrangements set out above are acceptable. Please let me have your confirmation that this is the case, and I will then arrange for documentation to be prepared to reflect the above. I anticipate that the documents will consist of (1) an employment contract, (2) an option agreement, and (3) new articles of association to be adopted by the Company.
System of Law: England-and-Wales
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Hello, have you written an answer yet? I ve received an email saying you did but I cannot see it. Thank you
HiThank you I have written a response.I am having some problems transferring it to the site. I haven't posted it yet. I will send it to you in the morning when I am at my work PC.I apologise for the delay.Kind regardsAJ
Hi,Sorry for the delay and thank you for your patience.Please can you confirm that the above are not the actual wording of the clauses? If they are, then they are too ambiguous to be legally enforceable.I have used your numbering1. Once you have exercised the option you will own 20% of the Company (i.e 100 ordinary shares of a total of 500 shares). 2. This is in conflict with point 1. Point 1 assumes that after both options you will have 20% of the issued share capital. Point 2 says that you can only exercise option 2 if it means you dont own more than 10% of the Company? This is clearly at odds!3. This is self explanatory if you leave you will lose the right to the option. I would make sure that you only lose the right to the option "as far as it has not been exercised". If they want you to sell any shares you own when your employment terminates there will need to be a mechanism in place to ensure you receive a far price for them.4. This is fair enough. Assuming the total number of shares you can receive under your option £100 of Ordinary Shares of £1 each the most you will pay is £100 for the shares. You must include a provision though that will allow you to have in relative terms the same number of shares should the share capital be sub divided.5. I am not sure EMI relief will be applicable to you. I m afraid you will have to check this with your accountant.6. This clause is fairly standard. Again you may wish to check with your accountant what your personal tax position will be.7.This anticipates protecting your option from dilution should more shares be issued. It will be impossible to confirm how effective this will be unless I can see whether it has been properly worded.Shareholders Agreement1. This anticipates there is only one class of share, each share will have equal rights;2. This means that should the board wish to issue more shares you will not be able to prevent it by insisting you are entitled to pre emption rights. The only way I can see this working is if there is also a provision in the articles of association, which has suspended the rights for a statutory maximum of 5 years. This clause means you can be diluted. The second part of it means should another shareholder wish to sell you are entitled first refusal to such proportion of their shares relative to the number you own.3. This is self explanatory. If one of the shareholder wants to transfer shares to their daughter, dog, mother in law etc the pre emption rights wont apply. The agreement must state that the incoming shareholder will sign a "deed of adherence" to the shareholders agreement.4. These are drag along and tag along rights. I believe I already explained the effect of these to you. Essentially if shareholders representing 50% of the issued voting share capital (please confirm that this is what the solicitor means) agree to sell they can drag you into their sale at the same price or if they dont, you are entitled to tag along on the sale at the same price.5. I would insist this is amended to say that if you leave with in 18 months for example of exercising the option then you can be forced to sell at par value. If it is after 18 months you should receive fair market price. Also the clause is ill conceived as the Company will never admit it unfairly dismissed you.Ask if there will be a list of restricted shareholder activities?I would strongly recommend that you have an independent solicitor review these documents for you when you receive them.Kind regards AJ
LLB, LPC, DELF
Thank you for accepting my answer.If you require any further assistance please do not hesitate to contact me.Kind regardsAJ
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