It is increasingly common to hear figures such as, for example, Shareholders’ agreements, parasocial agreements, extra-statutory agreements, joint ventures, investment agreements, among others. All of them are the most relevant document in commercial transactions of incorporation of companies, investments or acquisitions in which the relations between the shareholders and with the company will be regulated. The shareholders’ agreement (we will call it as referred from now on) is postulated as the most flexible legal tool against the rigour of the articles of association and its compulsory registration in the commercial register and, in addition, it allows maintaining confidentiality.
Firstly, this type of agreement is defined as a consensual contract between the shareholders of a company. Basically, it focuses on regulating how the company and its governance are going to be organised, decision making, the future sale of shares, as well as the alternative solutions to possible future conflicts between the parties, making it a useful instrument for regulating coexistence within the company. The shareholders’ agreement differs from the articles of association in that it is more flexible. The articles of association, the content of which is imperative and regulated, rule the most important aspects of the company’s operation. The articles of association are conditional on the autonomy of will since they must be registered in the commercial register with the limitations that this entails.
In contrast to the articles of association, the nature of the shareholders’ agreement is contractual, allows to agree issues not included in the articles of association because of a matter of confidentiality or because they are not registrable in the commercial register. The shareholders’ agreement is not enforceable against non-signatory third parties, nor against the company (unless it also signs the agreement), being valid and enforceable only between those who sign it, including before the courts, as long as the limits of the autonomy of will are respected, it means that they are not contrary to law, morality or public order. In any case, however, they must regulate their relationship with the aforementioned articles of association, as well as include commitments to modify them and adapt them in accordance with the wording of the shareholders’ agreement to the extent permitted by law. In the event of a discrepancy between the shareholders’ agreement and the articles of association, it is usually agreed that the first one shall prevail over the latter between the parties whose sign the agreement. Likewise, for this type of shareholders’ agreement there is no standard model to follow, given the flexibility of its content, the adaptability to the specific interest of the parties and the type of business to be developed. In this sense, we must delimit its content from two main perspectives: on the one hand, taking into account the rules that regulate obligations and contracts in civil law, and on the other, the limits imposed by corporate law. In addition, at the time of drafting, the parties should not lose sight of the intention or purpose of the various agreements and seek coherence in the contractual structure by stipulating the prevalence of the shareholders’ agreement as a base agreement over the rest of the agreements that will depend on it. Among the most common agreements included in the shareholders’ agreement are the following:
1.- Relationship agreements: These are those that regulate the relations between the parties, without affecting the company or third parties, binding only the signatories. For example, agreements relating to the distribution of dividends (how much and when); or agreements relating to pre-emption rights, drag along and tag along.
2.- Attribution agreements: In this type of agreement, the parties assume present or future obligations in favour of the company. For example, the commitment to make additional contributions to the company. If it is envisaged as an agreement in favour of a third party, it will be understood to have effect as soon as the company becomes aware of it and accepts it, and can force it. Another example would be the obligation on a shareholder to provide services to the company. However, it is important to bear in mind that if there is a breach by that shareholder, the affected parties may not invoke such breach or set in motion the legal mechanisms for excluding the shareholder who is in breach. In order to achieve this effectiveness, it must be included in the articles of association as an ancillary obligation.
3.- Organizational Agreements: This type of agreement tends to regulate the behaviour of the shareholders within the corporate bodies, the general meeting and the administrative body. It is customary to establish the need for reinforced majorities for the adoption of certain resolutions within the general meeting, with the aim of requiring the vote of one or more minority shareholders in order to reach such an agreement. With regard to the governing body, it is customary to agree in the shareholders’ agreement on the composition and distribution of the members of the body as well as the majorities required for the adoption of resolutions on relevant matters.
For all these reasons, we conclude by highlighting the need to sign a shareholders’ agreement when starting a business project or when new investors join it. It is advisable for the company to sign in order that the clauses within the shareholders’ agreement are enforceable against it. It is also advisable to adapt the articles of association as much as possible to what is contained in the shareholders’ agreement in order to avoid discrepancies, prevalence and conflict within the company or between shareholders.