All the recent reforms regarding the constitution of mercantile companies have been aimed at eliminating a supposed problem, which is the one referring to the slowness of their constitution.
In order to speed up the constitution, deadlines have been established for the granting of deeds and for their registration and the wrong path has also been taken, which has been to limit the ability of partners to regulate in the most precise way for their interests, the organization of the company through the establishment of predetermined bylaws. If we add to this that, even if we do not conform to the standard bylaws, the bylaws can in no case contradict the configuring principles of company law, we find ourselves with the situation that the formal organization of many companies does not respond to the needs of the partners.
Anyone who has had experience in business is well aware that relationships between partners must be very clear at all times. And when you have had a negative experience in a business, in the next adventure you want to try to prevent the problems from happening again.
As a consequence of the foregoing, when a company is constituted it is very useful, in addition to a correct drafting of the bylaws, to resort to the para-social agreements, which allow us to complete said bylaws, regulating in a very precise way, the way of acting of each and every one of the partners, determining what each one of them expects of the others.
The para-social agreement has been defined by the best doctrine as those "agreements entered into between some or all of the partners of an SA or SL in order to complete, specify or modify its internal relations and the legal and statutory relations that govern it".
As usual in this blog, I do not want to make great legal disquisitions, so I will list what is usually subject to regulation in para-social agreements, to serve as a call to attention.
1.- AGREEMENTS ON THE RIGHT OF REPRESENTATION IN THE GOVERNING BODY:
1.1 Right to name one or more representatives on the Board of Directors.
1.2 Powers of the Board of Directors.
1.3 Remuneration of directors.
1.4 Operation of the Board of Directors (frequency of meetings, qualified majorities for certain matters, delegation of powers, etc.).
1.5 Impossibility of revocation of the directors appointed by the minority shareholder without his favorable vote, as well as the right to replace him.
2.- AGREEMENTS ON THE RIGHT TO INFORMATION:
2.1 Type of information: Balance, Profit and Loss Accounts, Treasury Statements, Dashboards, Ratios, Project Profitability.
2.2. Periodicity of information.
3 AGREEMENTS ON ECONOMIC RIGHTS:
3.1 Right to dividend:
3.2 Minimum amount or method of calculation.
3.3 Frequency.
3.4 Delivery Date.
3.5 Conditioned or not to the existence of Benefits/Reserves.
4 DEPARTURE AGREEMENT OR SALE OF COMPANY PARTICIPATION:
4.1 Minimum period of permanence or prohibition of sale (lock up period).
4.2 Form of exit (purchase and sale between partners, treasury stock...)
4.3 Accompaniment agreements (tag along) or drag (drag along).
4.4 Sale price or method of calculation.
4.5 Method of payment of the price.
5 AGREEMENTS ON POLITICAL RIGHTS:
5.1 Reinforced majorities:
5.2 Determination of matters that require a reinforced majority.
5.3 Modification of statutes.
5.4 Election of administrators.
5.5 Recruitment of senior management.
5.6 Opening of new lines of business.
5.7 Indebtedness.
5.8 Matters related to industrial property.
5.9 Precise majority percentage to adopt agreements on each of them.
6 OTHER AGREEMENTS TO INCLUDE:
6.1 Right to appoint auditors: Rotating between partners or for years.
6.2 Regime of transfer of shares inter vivos or mortis causa.
6.3 Treasury stock regime.
7.- CONTRACTS BETWEEN RELATED PARTIES.
7.1 Participation in similar or complementary businesses.
7.2 Compensation for breach of the shareholders' agreement.
7.3 Validity of the shareholder agreement.
8.- DISPUTE RESOLUTION CLAUSE:
Mediation, arbitration, applicable jurisdiction…
