Last updated: 5 August 2026.
Quick answer. Shareholders’ agreements are covenants between all or some of the partners of a company by which they seek to modify or complete their relationship, adjusting the legal or statutory rules that govern it. They belong to the sphere of relations between those who sign them and are binding exclusively on those parties. Several types can be distinguished: agreements regulating relations between partners without the intervention of the company — such as lock-up obligations or prohibitions on sale, dividend redistribution clauses or preferential returns, and purchase or sale obligations — which bind only their signatories, and agreements seeking to procure an advantage in favour of the company. Their effectiveness differs from that of the bylaws, which govern the corporate sphere and bind the company and all its shareholders.
First, we will explain what are shareholders’ agreements?
Shareholders’ agreements are agreements between all or part of the partners of a Company. By means of which they try to modify or complete their relationship. Likewise, the legal or statutory rules governing such relationships are also modified.
They are, therefore, covenants that belong to the scope of the relations of those who sign them. Therefore, we can say that they are binding exclusively on the parties who sign the agreement in question.
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Second, what types of shareholders’ agreements are there and how effective are they?
In this way we can differentiate three types of shareholders’ agreements:
1.- Those that regulate the relations between partners without the intervention of the Company. Examples:
- Obligation to lock up or prohibition of sale.
- Dividend redistribution clauses or preferential returns.
- Purchase or sale obligations under certain circumstances.
In general, such agreements only bind those who participate in them. That is, they would not bind the rest of the partners or the company itself.
2.- Those that try to procure some advantage in favor of the company and at the expense of the partners. Examples:
- Obligation of financing by one or more partners to the Company.
- Obligation of non-competition of the partners in favor of the Company.
- Granting of exclusive sales rights to the partnership on products owned by a Partner.
In these cases, the Company can directly claim performance from the one who assumed the obligation in question. Even if he is not a Party to the agreement in question, which would in any case be advisable. Only acceptance avoids revocation.
3.- Those that regulate the organization and operation of the corporate bodies. Examples:
- Agreements on the composition of the administrative body.
- Those relating to the quorums and voting majorities in the general meeting of the Company and its Board of Directors.
- Or on the ordinary day-to-day management of the Company.
Again (and without prejudice to exceptions in doctrine and jurisprudence) such resolutions are only binding on those who participate in them.
The third relevant point is the reflection of shareholders’ agreements in the bylaws.
Sometimes, shareholders’ agreements are not reflected in the bylaws. This can occur because they deal with matters that are not included in the bylaws. Or because they contain regulations that cannot access the Commercial Registry because they are contrary to the Regulations of the Commercial Registry.
It is possible, therefore, that there are valid clauses that cannot be registered. And, therefore, the wording of the bylaws and the contract between partners may differ on these points.
Said clauses, we reiterate, a priori perfectly valid, will not be enforceable against third parties because they do not enjoy registry publicity.
However, in order to ensure that they are effective, the parties must include a clause in the contract. Such clause must establish the prevalence between the parties of the content of the contract agreed by them. This over the content of the registered bylaws when such content may be discrepant.
As a conclusion, then, parasocial agreement or bylaws?
We understand that, as far as possible, it would be optimal for such parasocial agreements to be reflected in the bylaws. This is in order to avoid discrepancies and for such agreements to be enforceable both between the parties and against third parties.
However, as already indicated, sometimes it is not a matter of choice.
In such cases, the parties can reinforce their commitments by means of guarantees that give them some security of performance. For example, penalty clauses, call and put options, proxies for the casting of votes, etc. And they can even incorporate certain mechanisms in the articles of association (exclusion of the defaulting partner). And this, beyond the general remedies offered by the legal system (enforcement action or termination).
If this article has been of interest, we also suggest you to read the following article published on our website: Binding or non-binding nature of Letters of Intent
For advice applied to your case, see our Corporate practice area.
Don’t be left in doubt, get in touch. We’ll be happy to help and offer you solutions.
Frequently asked questions
They are agreements between all or part of the partners of a company by means of which they try to modify or complete their relationship, adjusting also the legal or statutory rules governing it. They are covenants that belong to the scope of the relations of those who sign them and are binding exclusively on those parties.
Only the parties who sign the agreement in question. Agreements that regulate relations between partners without the intervention of the company do not bind the remaining partners who did not sign them, nor the company itself, which continues to be governed by its bylaws and by the applicable corporate legislation.
Different types can be distinguished according to their purpose: agreements that regulate the relations between partners without the intervention of the company, which in general bind only those who participate in them; and agreements that try to procure some advantage in favour of the company. Each category has a different scope of effectiveness with respect to non-signatories.
Common examples include lock-up obligations or prohibitions on the sale of shares, dividend redistribution clauses or preferential returns, and purchase or sale obligations that are triggered under certain circumstances. In general, such agreements only bind the partners who participate in them, not the rest of the partners or the company itself.
Bylaws are the registered rules that govern the company and are enforceable against the company and all its shareholders, whereas shareholders’ agreements are private covenants effective only between their signatories. Each instrument operates on its own plane: the bylaws within the corporate sphere and the agreement as a contract between the parties who signed it.
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