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Shareholders' agreements in Spain: content, function and legal effect

Shareholders' agreements (‘pactos de socios’/’pactos parasociales’ in Spanish) are an increasingly popular feature of the formation and operation of companies, as they set out the rules and agreements governing the relationship between the shareholders. When a company is in its early stages, it is common for the founding partners/shareholders to be focused on the excitement of launching the business and not on the possibility of future disagreements or problems.

However, these agreements can go a long way in ensuring the stability and smooth running of the business, as well as preventing future conflicts. In this article, we will explore in detail the function and content of shareholders' agreements.

 

Abigail Sked-circulo-1Written by Abigail Sked

Paralegal 

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What is the relationship between a shareholders' agreement and the articles of association (los estatutos sociales)?

The articles of association make up the fundamental document that establishes the legal structure and basic operating rules of the company. They must be registered with the competent authorities and are of a public nature. Shareholders' agreements, on the other hand, are private agreements between the shareholders that stipulate specific aspects of the relationship between them, and which may supplement or add additional details to the articles of association. Shareholder agreements have "inter partes" effects, which means that they only have legal effect on those who have signed them, not on third parties, such as the company itself.

 

However, the legal effect of shareholders' agreements appears to be expanding. This interesting judgement came from the Audiencia Provincial de Barcelona in 2016 and was cited in the same Audiencia in 2019:

La eficacia de los pactos entre socios frente a la sociedad es una cuestión controvertida. El punto de partida lo establece el art. 29 de la Ley de Sociedades de Capital (LSC) que establece que los pactos que los socios mantengan reservados no son oponibles a la sociedad. No obstante, en aquellos casos en los que el pacto esté suscrito por todos los socios, como ocurre en nuestro caso, la doctrina ha admitido de forma mayoritaria que el pacto es oponible a la sociedad. En ese sentido, se ha afirmado que la sociedad deja de ser un tercero ajeno e independiente a ese pacto.”

(Unofficial translation: The enforceability of the agreements between partners against the company is a controversial issue. The starting point is established by Article 29 of the Ley de Sociedades de Capital (LSC), which states that the agreements that the partners maintain private are not enforceable against the company. However, in those cases in which the agreement is endorsed by all the partners, as in our case, the doctrine has generally accepted that the agreement is enforceable against the company. In this sense, it has been stated that the company ceases to be an independent third party to this agreement.)

(Audiencia Provincial de Barcelona, Sección 15ª, Sentencia 76/2016 de 31 Mar. 2016, Rec. 95/2015

Audiencia Provincial de Barcelona, Sección 15ª, Sentencia 229/2019 de 12 Feb. 2019, Proc. 575/2018)

 

What clauses do shareholders' agreements typically include?

Shareholders’ agreements can vary in scope and content, there is no standard model that needs to be followed, but they generally address issues such as:

  • The roles of each shareholder
    • The tasks of each shareholder, the expected dedication of time, etc. 
  • Permanence of the founding shareholders
    • Incentives or rules which promote the permanence of the shareholders
  • Decision-making and dispute resolution
    • The ways in which differences of opinion will be resolved, rules regulating the shareholders' meetings, etc. 
  • Distribution of profits 
    • The rules that determine the remuneration of the shareholders according to the project's status
  • Entry and exit of shareholders
    • The rules that regulate the entrance of new investors, the terms that apply to shareholders that leave the company and the corresponding consequences for their shares, etc. 
  • Confidentiality and non-competition clauses

and other key aspects of the company.

 

Of course, these are the rules and regulations that you create for your company, but your company will be subject to legal obligations and responsibilities too.  Check out the following blog post to find out more: 

LEGAL AND FINANCIAL OBLIGATIONS OF COMPANIES IN SPAIN

 

Not sure which clauses are right for your company? 

We can draw up a legally binding shareholders' agreement for you according to your specific needs and the particularities of your company.

As a first step, will ask you to have a think about your preferences regarding the following topics that you might want to include in your shareholder’s agreement:

  • Management body
  • Obligation of confidentiality.
  • Resolution in the event of deadlock during decision-making.
  • Exclusivity or non-exclusivity of the shareholders with regard to the company.
  • Non-compete clause.
  • Post-contractual non-compete clause.
  • Intellectual property.
    • Ownership and modes of use.
  • Transfer of company shares.
    • The period of permanence of the shareholders: period during which the shareholders are obliged not to sell their shares.
    • Exit scenarios of the founding shareholders from the company.
    • Transfer of shares between shareholders.
    • Transfer of shares upon death.
      • Pre-emptive rights of shareholders against transfer by inheritance.
    • Transfer of shares to third parties.
    • Pre-emptive right of the other shareholders to acquire the shares intended to be transferred.
    • Tag along: If one of the shareholders wishes to transfer all or part of his shares, the other shareholders are entitled to exercise a right to follow suit.
    • Drag along: In the event that one or more shareholders receive an offer to sell their shares, the other shareholders must also sell the shares to the third party, under the same terms and conditions.
  • Establishment of rules for the entry and exit of shareholders.
  • If the shareholders must provide services to the company, what those services will be and the remuneration provided.
  • The amount of time each shareholder is required to devote to the company.
  • Distribution of dividends (%).
  • Re-enforced matters that require the vote of approval of certain shareholders in order to be carried out.
  • Dispute resolution.

 

When is the best time to enter into such a SHAREHOLDERS' agreement?

As the shareholders' agreement is not a mandatory requirement, it can be drafted and signed at any time. However, the two key moments to do it are at the beginning of the project and/or when a new shareholder enters the company.

 

What are the advantages of shareholders’ agreements?

Shareholders’ agreements outline the corporate governance of a company and anticipate the solutions to future problems, advantages of which are the creation of stability within the company and the avoidance of misunderstandings and conflicts. This forward thinking not only allows for a more peaceful management of the company, but it can also contribute to attracting capital investment in the company.

 

In short, shareholders' agreements play a very useful role in the stability and operation of companies. They establish clear rules and written agreements that help to prevent conflicts, ensure the continuity of the company and attract investors. These agreements are not legally required, they only apply to those who have signed them, and they are adaptable to the needs and preferences of the company. However, it is recommendable to count on the help of a legal professional when drafting a shareholders’ agreement, given that their efficacy relies on their clarity and their anticipation of potential future obstacles.

 

Would you like to create a shareholder’s agreement for your company? Contact us below to see how we can help you or take a look at the services we offer regarding the constitution of new companies.

Discover how partnership agreements influence company administration and regulate decision-making. From company bylaws to dissolution and liquidation, these private agreements, along with the consolidated text of the law, are essential in capital companies and publicly traded companies. We will explore the purpose of the company, intellectual property, and share transmission. Anticipate conflicts and ensure the exercise of rights through confidentiality clauses. From the company name to organization and operation, these agreements are fundamental to administering justice. Need assistance? Contact us for expert guidance on setting up new businesses.

 

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Publication date: 26 October 2023

Last updated: 23 April 2024