Shareholders’ agreement: Legal Framework, types and how to do it?
A Shareholders’ agreement is a private document, which regulates the relationships between those who make up the corporate structure of a Company, its partners, among themselves and their relationship with the company.
On this post we will explain which are the different types of shareholders’ agreements, their legal framework applicable and how to do a shareholders’ agreement.
Emphasizing the nature of a Shareholders’ agreement as a private document, which reiterated jurisprudence has already recognized the possibility of making it enforceable against society, for practical purposes there are no different categories of Shareholders’ agreement, but they include agreements, clauses and conditions that can be categorized into very different matters, depending on their purpose:
- Attribution agreements: as their name indicates, they regulate the attribution of privileges or rights in favor of all or certain partners.
- Organization agreements: regulate the operation and organization of the company itself, setting the necessary framework to favor the adoption of agreements during the life of the company.
- Relationship agreements, activity agreements and conflict resolution agreements.
We once again emphasize the nature of this type of parasocial agreement: a private contract and, in that sense, we must comply with the Civil Code to determine which are the channels or actions that the legislation grants in case of breach of a partner agreement:
- Claim for compesation for damages, financial compensation for non-compliance with the agreement aimed at repairing the caused damages.
- Action for forced compliance, specific execution of the benefit due, depending on the nature of the benefit.
- Removal action: it is aimed to undo what was wrongly done and seeks to revoke the agreement breached by the defaulting partner.
- Resolution of the agreement: through the resolution mechanisms offered by the general law of contracts.
- Self-tutelage mechanisms: either by incorporating the content of the covenants into the bylaws, or by incorporating a penal clause (pecuniary penalty) for breach of the partners’ agreement, or by granting irrevocable legal powers to ensure the compliance of what is obligated in the agreeement.
How is a Shareholders’ agreement structured?
There is not a generic model that helps to develop a Shareholders’ agreement, in the same way, that the shareholders of 2 different companies do not have to have the same needs.
However, and in conjunction with the aforementioned about making the Shareholders’ agreement enforceable against the company, a key advice is to encourage 100% of the partners to sign a Shareholders’ agreement, so that the company itself can sign it in the same way.
On the other hand, and despite not offering a single formula for drafting a Shareholders’ agreement, below, we offer some, but not all, of the typical clauses that are usually incorporated in this type of document:
- The contribution provided by each founder, and their participation percentage in the capital stock.
- Regime for the transfer of shares of the company.
- Regime for the adoption of resolutions (reinforced majorities, reserved matters, etc.)
- Accessory benefits of some or all partners.
- Ways to run the business and project management.
- Unlocking clauses in situations of paralysis of the corporate bodies.
- Lock-up, drag along, tag along.
- Good Leaver and Bad Leaver clauses, in case of breach of the obligations defined in the Shareholders´ agreement.
- Intellectual property of the software.
- Non-competition and confidentiality clauses.
You can notice that ruling the relationship between partners is fundamentally important for the company development. Commonly the partners of all the companies subscribe parasocial agreements to avoid future issues.
At Letslaw we are experts in advising our clients in the steps required to set their business. Our professionals are able to assist you in preparing a Shareholders´ agreement, which is an optimal instrument to promote relationships between the partners of your company.
Letslaw es una firma de abogados internacionales especializada en el derecho de los negocios.