Tony Pak (commercial lawyer)


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很久没有更新我们的博客了。 这是我们关于股东协议的常见问题系列的最后一期。希望这个系列对所有的商业企业有帮助。 请注意这里只是为了起到普及法律常识的目的读者不要以此做为法律意见。

The following is for educational purposes only.  Do not treat it as or rely on it as legal advice or a legal opinion. If you want to share this post, please make sure you share everything including this disclaimer.



(Who can prepare a Shareholder Agreement?)

从理论上讲,任何人都可以写股东协议。 但以下原因可以说明为什么你要选择一个主要业务是公司和商业法的律师来帮助你准备股东协议。


选择错误的条款可能会在未来造成很多问题。 那么在这种情况下,如果没有股东协议可能会更好。

In theory, anybody can prepare a shareholder agreement, but here’s why you want to choose the right lawyer who practises primarily in corporate and commercial law to prepare it.

A lawyer would know what clauses to select to avoid problems and to address your stated basic needs.  More importantly, a lawyer would know how each type of clause will affect the business and which clause to select to accomplish your goals.  A lawyer would also know whether or not your stated needs or your wishes might lead to future problems and to suggest a solution.  The lawyer would know how each clause will affect the operations of the corporation.

Selecting the wrong clause may cause a lot of problems in the future and in such case, you may be better off without a shareholder agreement.


Can other non-legal professionals prepare a Shareholder Agreement?


我们经常听到的一个观点是,其他一些专业人士有股东协议的所有模板条款,因此没有必要聘请律师。这是不正确的。就像所有的合同一样,起草一份股东协议的难度并不是寻找一个模板,而是在于知道如何选择哪些有帮助的条款和删除那些不利的条款,同时确保各选择的条款之间不会冲突, 使这个合同合法有效。训练有素的商业律师能够起草合适的股东协议来帮助解决你的难题。

An accountant and other professionals can help with a Shareholder Agreement by providing valuable tax advice or insurance advice.  However, a Shareholder Agreement is a legal contract and its preparation is an exercise in contract and corporate law.  Remember a Shareholder Agreement is intended not just to set out how the corporation will be financed but to also anticipate potential future disputes and to have a solution ready in such cases.  Drafting to anticipate and resolve disputes is very much a legal service.

One perspective that we hear often is that some other professional already has all the template clauses for a shareholder agreement and therefore a lawyer is not necessary.  This is incorrect.  The difficulty in drafting a shareholder agreement, like all contracts, is not in finding a template but selecting which clauses actually help, deleting the ones that are harmful, ensuring selections do not conflict, and generally, ensuring the contract accomplishes your goals legally and properly.  A corporate lawyer is specifically trained to deal with the most difficult parts of drafting a shareholder agreement.


(How can a business lawyer add value to my shareholder agreement?)



通过和客户的讨论,律师使股东协议更有价值。 简单地说,在讨论中确定你的需求以及如何最好地解决它们,这是你能从律师那里得到的最有价值的部分。一旦这部分完成,起草股东协议就会变得容易多了。

A shareholder agreement for a business that’s just starting should be different from a shareholder agreement for a well-established business.  The two businesses are at different stages and the goals of each business would be different.

The role of the lawyer is not just to draft the agreement but to look at your immediate needs and your future plans.  An experienced business lawyer is knowledgeable about the challenges a corporation may face at each stage of growth and can offer suggestions to improve your shareholder agreement.  The lawyer should then be able to determine which clauses are the most suitable for your situation while taking into account what you can afford at the time of the agreement.

This can only be done by way of a discussion with a client who has already determined what their basic needs will be.  Simply put, the value you get from a lawyer is in this discussion to determine your needs and how best to address them.  Once that has been completed, drafting becomes much easier.

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