Shareholder’s agreement: what is it and how to draw one up?

Shareholder’s agreement: what is it and how to draw one up?

When setting up a company, founders tend to focus their efforts on aspects such as product development, finding customers, or obtaining financing. However, one of the most decisive factors for the stability of the project is the establishment of a legal framework that regulates the relationships between the shareholders. The shareholders’ agreement is an essential tool in this regard, as it allows for a clear definition of the rights, obligations, and responsibilities of those who make up the company.

What is the purpose of the partnership agreement?

The shareholders’ agreement is a private contract through which the participants in a company agree on the rules that will govern their relationship and the manner in which the most relevant decisions will be made. Its main feature is its flexibility, as it is not subject to any specific form or registration in the Commercial Registry. Unlike the articles of association, which are public and generally applicable, the shareholders’ agreement is confidential and personalized, adapted to the reality and particular interests of each business project.

This agreement fulfills a preventive and organizational function. It prevents conflicts by anticipating possible situations of disagreement and offers specific mechanisms for their resolution. In addition, it organizes the internal structure of the company, precisely defining the role of each shareholder, the rules for the entry and exit of new investors, and the management of the profits generated. Its existence contributes to providing legal certainty and stability to the business, essential factors for sustained growth and attracting capital.

What should be included in a model partnership agreement?

The content of the shareholders’ agreement varies depending on the nature of the company and the profile of its members, but there are certain issues that must be addressed systematically. One of the most important is the distribution of share capital and voting rights. This section defines the degree of influence that each shareholder will have in decision-making and prevents power imbalances that could jeopardize the functioning of the company.

It is also essential to define the roles and responsibilities of each shareholder, especially when some of them play an active role in the day-to-day management of the business. This point helps to clarify expectations and avoid overlaps or operational misunderstandings.

Another fundamental aspect is the profit policy. The agreement can establish when dividends will be distributed, whether there will be an obligation to reinvest them, or what criteria will be followed to approve such distribution. Similarly, it is advisable to include a clear regime for the transfer of shares. This mechanism protects the continuity of the project and prevents third parties outside the original spirit of the company from acquiring shares without the consent of the founding shareholders. Preference or prior consent clauses can be incorporated to ensure internal control of the shares.

Exit clauses deserve special attention. In any company, situations may arise in which one or more shareholders wish to withdraw from the project. The shareholders’ agreement allows conditions and procedures to be established for this, such as minimum permanence periods, share valuations, or prohibition of subsequent competition. This protects both the company and the remaining shareholders, avoiding conflicts and economic damage.

The protection of information and intellectual property also occupies an important place. Confidentiality clauses prevent the disclosure of sensitive data on strategies, customers, or technology, while intellectual property clauses ensure that intangible assets developed within the framework of the business belong to the company and not to a particular person. In the field of startups, where value often lies precisely in intangible assets, such provisions take on critical importance.

Finally, a good shareholders’ agreement should include effective mechanisms for conflict resolution. The inclusion of mediation or arbitration procedures allows disputes to be resolved quickly, avoiding lengthy and costly legal proceedings. Clarity in these mechanisms helps to preserve the relationship between the shareholders and maintain the company’s operations even in tense situations.

Expert knowledge for drafting the shareholders’ agreement

Drafting a shareholders’ agreement requires a process of reflection and consensus. The first step is to identify the common interests, potential points of friction, and expectations of each shareholder. Subsequently, a draft is prepared that reflects the agreements reached, which will be reviewed until a document that satisfies all parties is achieved. The involvement of a lawyer specializing in commercial law or corporate law is essential to ensure the legal consistency of the text and its compliance with current legislation.

Once finalized, the document is signed by all shareholders, acquiring full contractual validity. Although it is not necessary to register it, it is advisable to have it notarized to give it greater probative force.

In short, the shareholders’ agreement should not be seen as a mere formality, but as a strategic tool that consolidates the foundations of a healthy and lasting business relationship. A good shareholders’ agreement helps prevent conflicts, promotes transparency, and protects both the viability of the business and the individual interests of each shareholder.