Actualizado: 30/06/26
When several people decide to start a venture together, the initial excitement often overshadows an issue that, over time, can determine the survival of the project: what happens when the partners no longer agree. Differences in business vision, disagreements about management, the entry of a new investor, or simply the departure of one of the founders are common situations that, without the right rules, can lead to long and costly conflicts.
The shareholders' agreement is the legal tool designed precisely to avoid that scenario. Although it is not mandatory, an increasing number of companies – especially startups and SMEs with multiple partners – consider it indispensable from day one.
A shareholders' agreement
A shareholders' agreement is a private contract between the shareholders of a company that governs their relationship beyond what is established in the company's articles of association. While the articles of association are public and must be registered with the Companies House, the shareholders' agreement is private and allows shareholders to set additional, more flexible, and tailored rules without the need to make them public to third parties.
It is common to confuse it with the articles of association, but they serve different functions: the articles of association regulate the basic functioning of the company in relation to third parties, while the shareholders' agreement governs the internal relationship between the signatories, with a degree of detail that the articles of association do not usually include.
Why is it important to sign it as soon as possible
The best time to negotiate a shareholders' agreement is when everything is going well, not when a problem arises. Once a disagreement emerges, positions harden and it becomes much more difficult to reach a fair consensus for all parties. Signing it in the early stages of the project allows for rules to be established with a cool head, thinking about hypothetical scenarios rather than immediate interests.
Furthermore, having a well-drafted shareholders' agreement conveys seriousness and professionalism to third parties, something particularly valued by investors and financial institutions when assessing a company's stability.
Key clauses that should be included
- Share transfer regime
One of the most important clauses regulates what happens if a partner wants to sell their stake. Pre-emption rights are usually included, which oblige the departing partner to offer their shares to the other partners first before selling them to a third party, thus preventing outsiders from entering the project without the consent of the rest. - Drag-along and tag-along clauses
The drag-along right allows majority shareholders, if they decide to sell the company, to compel minority shareholders to sell their stakes on the same terms, facilitating global sale transactions. The tag-along right protects minority shareholders, allowing them to join a sale if the majority shareholder decides to sell their share, rather than being stuck with an undesirable new partner. - Vesting clauses
Especially relevant in startups, these clauses condition the consolidation of a founder partner's shares on their continued active involvement in the project for a specified period. If the partner leaves prematurely, they lose part or all of the unvested shares, thus protecting those who remain committed to the company. - Deadlock resolution
When partners have equal stakes, or the distribution of power prevents decisions from being made, a deadlock can occur, paralysing the company. A shareholders« agreement can include mechanisms for resolving this, such as mandatory mediation, arbitration, or even forced buy-sell clauses between partners (known as »Russian« or »Texan" clauses) that compel one party to buy or sell their stake at a determined price. - No competition and confidentiality
Non-compete obligations, which prevent a partner from engaging in a similar activity outside the company, are commonly included, as are confidentiality clauses concerning sensitive business information, which remain in effect even after the partner leaves the partnership. - Dividend policy and reinvestment
The agreement can establish clear criteria on the distribution of profits: what percentage is reinvested and what is distributed among the partners, avoiding recurring discussions in each financial year and providing predictability for all parties. - Governing bodies and decision-making
Beyond what the statutes stipulate, the agreement can detail reinforced majorities for particularly relevant decisions – such as capital increases, debt exceeding a certain amount, or changes to the company's purpose – ensuring that no partner can make critical decisions alone.
Common mistakes when drafting a shareholders' agreement
One of the most common mistakes is to copy generic templates without adapting them to the project's reality, which can lead to clauses that are inconsistent with the company's statutes or actual activity. Another common failing is to postpone its signing «until it's needed», when, as has been discussed, the best time is precisely before any tension arises. It is also frequent not to foresee the entry of new partners or investors, leaving the agreement outdated as soon as the shareholding composition changes.
Finally, it is worth remembering that a poorly drafted shareholders' agreement, or one that contradicts the company's articles of association, can create more problems than it solves. Hence the importance of seeking specialised legal advice for its preparation.
Conclusion
The shareholders' agreement is not a bureaucratic formality, but one of the most profitable investments a company with multiple shareholders can make: it anticipates conflicts before they occur and establishes clear rules for the most delicate moments of company life. Drafting it in good time, with professional advice and adapted to the reality of each project, is the best guarantee that future disagreements will be resolved within an agreed framework, without risking the continuity of the business.
At Lever, we have a commercial advisory team specialising in drafting and reviewing shareholder agreements tailored to each company. If you're taking your first steps with your partners, or if you never got around to signing one and now want to put things in order, let's talk.
Índice
