Shareholders’ Agreement: Complementary Private Regulation.

The shareholders’ agreement is a private document that complements statutory and article-based provisions, adopted by shareholders to regulate certain situations that, due to their nature, cannot be included in the articles of association or that the parties prefer to keep private.

A company’s articles of association contain the organizational and operational rules reflected in the articles, subject to mandatory legal provisions; notably, the articles take precedence over statutory law, which serves as a supplementary framework.

The shareholders’ agreement is a private document that complements statutory and article-based provisions, adopted by shareholders to regulate certain situations that, due to their nature, cannot be included in the articles or that the parties prefer to keep private. These are known as parasocial agreements and are entirely voluntary.

Shareholders may enter into such agreements at the company’s incorporation—which is recommended—or at a later date once the project and its challenges are more clearly defined.

Like any contract, these agreements have effect only between the parties who sign them (Article 1257 of the Civil Code), i.e., the signing shareholders and not the company, without prejudice to internal claims among shareholders for breach of contract under the adopted corporate agreements.

Through the shareholders’ agreement, the parties seek to avoid conflicts and determine solutions to potential issues among themselves and/or with third parties, either to ensure the project’s viability or in relation to shareholders’ rights and obligations.

Shareholders’ agreements do not follow a single model; their effectiveness lies in tailoring them to the specific reality they aim to regulate, providing flexibility and certainty to relationships. They can be grouped into three main categories:

Relationship agreements: regulate shareholders’ relationships directly, without involving the company, typically regarding shareholding and its variations—pre-emptive rights, tag-along rights, obligations not to increase holdings above certain thresholds, obligations to sell or purchase shares under specified conditions, loss‐coverage clauses by certain shareholders, or dividend distribution.

• Attribution agreements: aimed at granting certain benefits to the company, with a corresponding obligation on shareholders toward the company, such as providing financing or performing work for the company’s benefit, as well as enforceable commitments like non-compete or lock-up obligations, which may be referred to in the articles as ancillary contributions for better protection. dirigits a procurar determinats avantatges a la societat, amb la correlativa obligació dels socis enfront de la societat, en el sentit de facilitar finançament a la societat o fer treballs en benefici de la societat, així com l’exigibilitat de determinades actuacions com no competir amb la societat o obligació de permanència, que poden ser referides en els estatuts com a prestacions accessòries per a la seva millor protecció.
• Organizational agreements: seek to regulate the company’s organization and operation in more detail or differently than the articles, generally in decision-making—e.g., shareholders agreeing to vote in a particular way (voting syndicates) to concertedly control the company, or defining its administrative and management structure.

Here are some examples:

Control clauses: regulate quorums and procedures for decision-making.

• Veto right: grants a shareholder—typically an investor—the power to block or prevent certain decisions, usually concerning capital increases, debt, specific hires and/or dismissals, executive compensation, choice and composition of the management body.
• Drag-along right: the right of the majority shareholder to compel minority shareholders to sell in the event of an offer to purchase all or a majority stake in the company.
• Tag-along right: the right of minority shareholders to sell on the same terms as the majority shareholder if the latter sells their shares to a third party.
• Preferred liquidation on exit: upon a sale or liquidation of the project, the order of payment among shareholders or third parties is determined.

To ensure the effectiveness of the shareholders’ agreement, we recommend a dual mechanism: its inclusion in the articles of association as an ancillary clause, with a provision that breach may lead to exclusion from the company; and the execution of a separate contract among shareholders to enable actions outside the corporate framework against the breaching shareholder.

Contact us with any questions about incorporating a shareholders’ agreement into your company or project.