Shareholders’ agreements regulate the relationship between shareholders outside the channels provided for by law and the articles of association. These shareholders’ agreements are fully valid and effective between the signatory shareholders.
The various disputes which are the subject of this article arise from a shareholders’ agreement signed by all the shareholders in relation to a company in the food sector based in the province of Murcia. At the time of signing, the four sons were two men, each owning 33% of the capital, and two women, each owning 17% of the shares.
Legal proceedings – year 2010
The first claim, by one of the sisters against the other shareholders, was to enforce certain stipulations in the shareholders’ agreements whereby the two sisters would receive an additional 3% of the company’s capital and would each become holders of 25% of the capital of a Brazilian subsidiary created in the year 2000.
The Supreme Court concludes that the two brothers were forced to transfer 3% of their shares in the parent company to their sisters, but not of the shares in the subsidiary of which they were not the direct owners.
Legal proceedings – 2015
The sister, who was not a plaintiff in the previous proceedings, requested that the company holding the shares in the Brazilian company should transfer part of the shares to the two sisters. At that time, that company was no longer the original company, but a newly created resulting from a corporate restructuring from 2013.
The Supreme Court confirms that no obligation can be imposed on this company as it was not a party to the shareholders’ agreement. It is necessary to respect the separate and independent legal personality of companies, and holds that the only exception to the non-party nature of shareholders’ agreements are the agreements of attribution for the benefit of the company, which only allow the company to demand the compulsory fulfilment of these stipulations for its own benefit.
Legal proceedings – year 2016
In this proceeding, one of the two sisters requested in 2016 that her two brothers be ordered to amend the company’s articles of association to bring them into line with the shareholders’ agreement. Specifically, that these bylaws should include a provision contained in the shareholders’ agreement according to which certain decisions on certain matters would require the favourable vote of at least three of the four brothers.
According to the Murcia Provincial Court, the Capital Companies Act does not allow a majority system for specific persons, as it could be the case that one or more of the brothers transfer their shares to third parties, and then the amended bylaws would reflect the need for the favourable vote of a non-shareholder, which would not be enforceable.
Shareholders’ agreements and the doctrine of the Spanish Supreme Court
In synthesised form, they could be summarised as follows:
– Shareholders’ agreements are valid and effective between the signatory parties.
– These agreements are not enforceable against the company, nor do they bind it, since the company is not the subject of these agreements, but rather the object of them. This is the interpretation given by the Supreme Court to Article 29 of the Capital Company Act, which states that “Agreements that are kept confidential between the partners shall not be enforceable against the company”.
– If the agreement contains a stipulation for the benefit of the company (attribution agreements), the company may demand compliance, even if it is not part of the contract.
– Company agreements that seek to give effect to shareholders’ agreements must in principle be respected, and challenging them may constitute an action contrary to good faith and to the company’s own acts and constitute an abuse of rights.
In line with current doctrine, the possible solution could be that these agreements are also signed by the company, even though the company is not actually the subject of these commitments, but rather the object of them. The fact that the company is a signatory to these shareholders’ agreements would mean that compliance with them could also be requested by any shareholder vis-à-vis the company.
In view of the above, the importance of the correct drafting of the shareholders’ agreements, as well as the decision as to who is a party to them and who signs them, is of the utmost importance in order to ensure that these agreements are truly effective and fulfil their purpose. In the event of a breach of an shareholders’ agreement, it is necessary to define an appropriate procedural strategy from the outset in order to avoid potential procedural problems.