Shareholders’ Agreement is a legal instrument used in the formation of publicly-held companies, whether open or closed.
This agreement is actually a contract between the shareholders. It has the function of determining the duties, rights and responsibility of all those who hold shares in the company, preventing conflicts and preserving the interests of both shareholders and the legal entity.
The shareholders’ agreement is governed by Law 6,404 of 1976, known as the Corporate Law, specifically, in Article 118.
Partners Agreement x Shareholders Agreement
The partner agreements are divided between the Shareholders ‘Agreement, which is applied to limited liability companies, and the Shareholders’ Agreement, which is applied to public limited companies.
The difference between them is the way in which capital is divided in the organization: in quotas or in shares. Therefore, the shareholders ‘agreement can also be called a partners’ agreement. However, to avoid confusion, it is better to use the specific term for the case of S / A companies.
Classification of the Shareholders’ Agreement
The shareholders’ agreement can be classified into types, according to different criteria.
For the purpose criterion, we have:
- The command agreement, which establishes who controls the company, in addition to including forecasts about changes in the bylaws, capital increase, among others.
- The defense agreement, which aims to protect minority shareholders against possible abuses by those who control the company.
- The mutual understanding agreement, which aims to balance the interests of controllers and minority shareholders and to pacify disagreements between groups.
By the content criterion, we have:
- The voting agreement, which determines how the voting rights will be exercised by the shareholders.
- The blocking agreement, which seeks to avoid changes in the company’s corporate composition, for example, by establishing rules for the sale of shares.
- The multiple agreement, which addresses several issues of interest to the legal entity and shareholders, such as how to elect directors.
Essential elements of the Shareholders’ Agreement
The elements that make up a shareholders’ agreement may vary from case to case. However, some items cannot be missing. The agreement must determine:
- Criteria for the division of profits and losses;
- Governance measures adopted to control the company;
- Rules for transfer and sale of shares;
- Rules to increase the participation of those who are already shareholders, or to dilute the participation of shareholders in case of entry of new foreign investments;
- Procedure for making decisions and resolving deadlocks among shareholders;
- Rules for calling meetings and assemblies.
Other clauses for the Shareholders’ Agreement
The shareholders’ agreement may establish the right to joint sale, or Tag Along . This is a clause that guarantees that if a majority shareholder sells its shares, minority shareholders will be able to follow the transaction under the same conditions.
The shareholders’ agreement may also establish a joint selling obligation, or Drag Along . This clause guarantees that if the majority shareholder receives a proposal to sell the company, he can close the transaction with the shares of the minority shareholders , in addition to his own.
Registration of the Shareholders’ Agreement
After being drafted and approved, the shareholder agreement only takes effect as soon as it is filed at the company’s headquarters and registered in the share registration book.
If the company issues stock certificates, each of these certificates must also include a text stating that the respective stock is subject to the terms of the agreement.
Finally, it is also recommended that the agreement be filed with the Commercial Registry where the company was registered. If it has any confidential clauses, a version can be filed with only the public clauses.
All of these measures ensure that the terms of the agreement can be exercised in front of third parties, people who were not involved in its approval.