Subscription and Shareholders’ Agreement

After you have agreed on the term sheet (signed or not), the investor will start the final parts of the due diligence while the subscription agreement (Swedish: investeringsavtal) and shareholders’ agreement (Swedish: aktieägaravtal) are drafted. When the due diligence is complete it’s time to sign the subscription agreement and shareholders’ agreement. We have a series of three different shareholders’ agreements, which one to use depends and I suggest you read up on it a bit.

Subscription Agreement

The subscription agreement regulates the terms of the investment itself, what happens in connection to the investment and what warranties the founders give to the new investors. The shareholders’ agreement, on the other hand, stipulates the terms for the future partnership and is not directly related to the investment itself. The subscription agreement refers to the shareholders’ agreement and typically they are signed at the same time.

Sometimes, these documents are merged to one big document (often called investment agreement) but for clarity they are usually separated.

The subscription agreement is very similar to the term sheet and doesn’t contain so many new things. Some things are explained in greater detail, such as warranties and indemnification but it’s quite straightforward.

Don’t forget to add the investors’ and their amounts in the clause called subscription. Sometimes the investors have to sign separate subscription lists but in this version the subscription takes place by signing the subscription agreement.

Shareholders’ Agreement

The shareholders’ agreement is probably one of the most complex and important agreements you will ever sign. It contains almost everything related to the shareholding of the company, including vesting, share transfer restrictions, drag along, non-competition etc. Breaking the agreement can have severe consequences so make sure you understand it.

Hopefully there will be nothing strange compared to the term sheet but count on new discussions popping up around details not specified in the term sheet. For example, everything in the clause transfer of shares is not mentioned in the term sheet, but quite standard.

The shareholders’ agreement should always be signed by all shareholders in the company. If new shareholders enter the company, they have to sign the existing agreement by signing an adherence agreement (attached as a schedule to the shareholders’ agreement).

If you have a lead investor, use the shareholders’ agreement called “with VC lead investor” (duh!). The other agreement (“only small investors”) is tailored for a startup raising a small round where no investor takes lead. If you have no investor at all, but want a shareholders’ agreement between the founders, please see the Shareholders’ Agreement Without Investors instead.

/Erik Byrenius

 

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20 responses to “Subscription and Shareholders’ Agreement”

  1. […] Use a term sheet in discussions with investors. When you have agreed on everything, you can choose to sign the term sheet (most of it is non-binding anyway) or just move straight on and translate it into a subscription agreement and shareholders’ agreement. […]

    • Hej Milan, i dagsläget finns investeringsavtalen tyvärr endast på engelska. Jag överväger att ta fram en översättning till svenska till en senare version, men det är ett stort projekt och jag vet ännu inte hur stort behovet är. /Erik

      • Hej, jag hade också uppskattat om aktieägaravtalet fanns på svenska. För övrigt tusen tack för alla underlag till oss som är startups!

  2. Agree that shareholders’ agreement is probably one of the most complexes. It’s hard for our team at the beginning, but later on is working well.

  3. Hi Erik,
    I downloaded the templates, but can’t find a subscription / shareholder agreement template (only the term sheet), where should I look?

  4. Dear Erik,
    Is there a maximum duration that a Shareholders’ agreement in Sweden can have by law or it could be indefinite?

  5. Hello, I downloaded the termsheet, subscription and shareholder agreement template, but i couldnt find it in the zip folder. Please help.Thanks

  6. Hello, Thank you for this. It is very complete and useful. I wanted to know, is the Download button disabled or is it just my computer? If it is disabled, could you tell me where I can download some of these resources? Thank you again

    • Glad to have you here! You can download all the resources from startuptools.org/se/ through the “Download & Subscribe” flow.

  7. Thanks first of all for this great set of documents!

    In the SHA I have the impression that the definition of “board” and how the term is subsequently used (ex. §5) may warrant to split out into “board of directors” and “board”. I am unfamiliar with the Swedish corporate law, from a DACH perspective, the directors of a company form a board (sometimes aka “management board”) and the official company board is separate (aka as “supervisory board”) …

    • You are welcome. Glad you like them!

      I see the differentiation you are referring to. In the Swedish context however, “Board” refers undoubtedly to “Board of Directions” (which is the official company board) as when there is a group of deciding senior managers, it is not referred to as a “Board”. Generally the only time layers of boards become relevant in the Swedish context is when there is a group of companies, in which case each subsidiary also must have an official board.

    • Hej Jennifer!
      Nej, vi har inte gjort det. Ett par anledningar till att vi inte har gjort det är att det skulle göra det något svårare att hålla standardiseringen över norden intakt och för att vi ser att man ofta behöver översätta det till engelska ändå när man sedan ska ta in kapital. Då är det effektivare och mer standardiserat att köra på engelska redan från början.

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