In the business context, the Partners’ Agreement emerges as a vital document that establishes the rules of the game for the management and administration of a company. This agreement, which is essential for the harmonious operation of the company, regulates key aspects such as decision-making, the entry of new investors and the activities of the worker-partners. In the following, we will explore the fundamental aspects to consider when drafting a Partnership Agreement:
- Management and administration rules of the Company:
Structure and composition of the Administrative Body:
The Shareholders’ Agreement will define the structure of the administrative body, establishing whether it will be a sole administrator, joint or joint administrators, or a board of directors.
Matters with reinforced majority at the General Shareholders’ Meeting:
It establishes the decisions that require the favorable vote of a majority of the capital stock in excess of that established by law, such as commercial decisions, transfer of shares, decisions on the administrative body, among others.
- Rules relating to the transfer of shares of the Company:
- Right of first refusal: Partners are given preference to acquire shares in the event that another partner wishes to sell them.
- Joint sale obligation (drag along): Allows a partner to sell its shares, obliging the other partners to sell theirs under the same conditions.
- Right of joint and proportional sale of the shareholding (tag along): Protects minority shareholders in the event of sale of shares by another shareholder.
- Binding of the partners to the Company:
In the case of key partners, specific commitments such as non-competition, exclusivity, permanence and assignment of intellectual property rights in favor of the company will be established.
- Rules concerning the liquidation of the Company:
Rules are provided for the eventual liquidation of the company in case the project does not succeed. Preference clauses will be considered for the distribution of the liquidating quota, ensuring an orderly exit in the event of closing.
- Penalty clauses applicable in the event of non-compliance with the Shareholders’ Agreement:
Penal clauses will be established to regulate the consequences of non-compliance with the shareholders’ agreement, such as the recovery of shares, compensation for damages, and possible financial indemnities.
- Conflict resolution rules:
Mediation systems and mechanisms will be implemented to resolve internal conflicts, either through submission to ordinary jurisdiction or through arbitration, guaranteeing an efficient and fair resolution of disputes.
Implementation and effectiveness of agreements
It is important to transfer the resolutions of the Shareholders’ Agreement to the Company’s Bylaws so that they are public and enforceable against third parties. The agreements subject to registration in the Mercantile Registry include aspects such as the administrative body, restrictions on the transfer of shares, quorum of attendance, causes for separation and exclusion of the partner.
In summary, the Shareholders’ Agreement is a fundamental instrument for establishing the rules of the game in the management and administration of a company. When drafting a Partners’ Agreement, it is essential to consider all of the above aspects in order to ensure the stability and good governance of the company.
This publication does not constitute legal advice.
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