The shareholders' agreement and the participatory loan: shielding and financing the company

The shareholders' agreement (or parasocial agreement) is a private contract between the partners of a company that regulates their internal relations beyond what the bylaws state. It is protected by the freedom of contract and the Ley de Sociedades de Capital (the Spanish Capital Companies Act) itself recognises it: its article 29 provides that agreements kept secret among the partners will not be enforceable against the company.

The bylaws are public, are registered in the Registro Mercantil (the Commercial Registry) and are subject to the limits of what can be registered. The shareholders' agreement, on the other hand, is confidential and allows regulating what the Registry does not accept or what is not in your interest to publish: company valuations, permanence commitments, vesting plans, personal obligations of each founder or the rules for a future investment round.

The time to sign it is before it is needed: when incorporating the company, before the entry of an investor or a new partner, and always before a conflict arises. In companies with two partners at 50% it is especially critical: the deadlock of the corporate bodies is a legal cause for dissolution (art. 363.1.d LSC).

Vesting and permanence: the founders consolidate their shares gradually (for example, by years of dedication) and, if someone leaves early, the others can acquire the unconsolidated ones. A distinction is made between an amicable exit and an exit due to breach (good leaver and bad leaver), with different prices. Under Spanish law, this is implemented through cross call options in the agreement and, if effect against the company is desired, through ancillary obligations in the bylaws (arts. 86 to 89 LSC).

Non-competition, dedication and intellectual property: the founders commit to dedicating themselves to the project, not to compete during the term of the agreement (and for a period after their exit) and to assign to the company what they develop for it.

Drag along and tag along: the drag along clause allows that, if the agreed majority accepts a purchase offer for 100% of the company, the other partners are obliged to sell under the same conditions. The tag along clause protects the minority shareholder: if the majority shareholder sells, they can join the transaction at the same price. Both can also be included in the bylaws if they are drafted with clear and precise circumstances: in a limited liability company, the Reglamento del Registro Mercantil (Commercial Registry Regulations) allow registering the obligation to transfer shares (art. 188.3 RRM); in a public limited company, the applicable provision for restrictions on the transfer of shares is art. 123 RRM.

Reinforced majorities and deadlock resolution: in a limited liability company, the LSC allows the bylaws to require a higher percentage of votes than the legal minimum for specific matters, without reaching unanimity (art. 200 LSC); in a public limited company, the reinforcement of majorities is governed by art. 201 LSC. The agreement lists which reserved matters (capital increases, sale of essential assets, indebtedness, remuneration) require this consensus. And deadlock resolution mechanisms are agreed upon: escalated negotiation between partners, mediation and cross buy-sell options to break a 50/50 tie before the deadlock leads to dissolution.

The agreement binds those who sign it, like any contract: you can demand its compliance and claim the agreed compensation or penalty. However, an agreement kept secret is not enforceable against the company (art. 29 LSC): a general meeting resolution is not annulled just because it contradicts an agreement that the company has not assumed. That is why the penalty clause is so important: it sets the cost of breaching in advance.

To reinforce its effectiveness, it is advisable that all partners sign it (omnilateral agreement) and, when appropriate, the company itself; to incorporate into the bylaws whatever is registrable (transfer restrictions, reinforced majorities, ancillary obligations with their statutory penalty clause); and, if desired, to elevate it to a public deed, an optional step that Managora prepares and coordinates for you, since the agreement is valid as a private document.

In listed companies, the regime is different: parasocial agreements regarding voting or transferability must be communicated to the company and to the CNMV (the Spanish National Securities Market Commission), deposited in the Registro Mercantil and published (art. 531 LSC).

It is a loan with its own legal regime, defined in article 20 of Real Decreto-ley 7/1996 (Royal Decree-Law 7/1996): the lender mandatorily receives a variable interest linked to the company's performance (net profit, turnover, total equity or another agreed criterion), to which a fixed tranche can be added; its early repayment is only possible if it is compensated by an increase in equity of the same amount; in the priority of claims, it ranks behind common creditors; and it counts as net equity for the purposes of capital reduction and company liquidation.

This last feature makes it the typical tool for two objectives: financing the startup without diluting the capital (the lender does not enter as a partner) and restoring the balance sheet when losses leave the net equity below half of the share capital, which is the cause for dissolution under art. 363.1.e LSC. It is also the instrument for public financing by ENISA, which in 2026 maintains participatory loans of between €25,000 and €1,500,000 without requiring guarantees (ENISA headquarters, consulted on 3 August 2026).

In tax terms, signing costs nothing: the loans are exempt from the ITP-AJD (art. 45.I.B.15 of Real Decreto Legislativo 1/1993 (Royal Legislative Decree 1/1993)) and the private contract does not accrue any tasa (official fee). The interest is a financial expense for the borrower, with one important exception: if the lender is an entity of the same commercial group (art. 42 of the Código de Comercio (the Spanish Commercial Code)), the Ley del Impuesto sobre Sociedades (the Spanish Corporate Income Tax Act) treats it as remuneration of equity and it is not deductible (art. 15.a LIS). Furthermore, when a partner lends, it is a related-party transaction and the interest must be set at market value; if the lender is a significant partner, insolvency regulations can subordinate their claim even further.

The partners' contribution to equity (account 118 of the Plan General de Contabilidad (the Spanish General Accounting Plan)) is a definitive delivery: it does not generate debt, it does not accrue interest and there is no right to demand its return. It reinforces the net equity for all purposes, not just against dissolution, and it is the cleanest way to restore a balance sheet when the partner does not expect to recover that money as a creditor.

The participatory loan maintains the expectation of recovering the capital with its remuneration, but with the rules of art. 20 of RD-ley 7/1996: interest linked to results, subordinated rank and early repayment only if equity is increased by the same amount.

The practical criterion: if the objective is to exit the cause for dissolution and the partner assumes that this money stays, a contribution to equity; if there is a real intention of repayment and of remunerating the financier, a participatory loan. In both cases, a well-drafted written document is essential: date, amounts, conditions and consistency with the accounting. Managora drafts both.

In the shareholders' agreement: not obliging the investor or new partner to adhere to the agreement (they remain outside all the rules); agreeing on a majority so reinforced that it equals the unanimity that the law prohibits in the bylaws of a limited liability company (art. 200 LSC); a vesting without defining good leaver, bad leaver or the price of the options (the clause becomes inapplicable); and dispensing with the penalty clause, leaving compensation to a slow and difficult proof of damages.

In the participatory loan: calling a loan participatory without interest linked to results (it breaches the essential requirement of art. 20 and loses its effects, including the computation as net equity); repaying it early without increasing equity by the same amount (art. 20.uno.b); and the classic partners' money that enters the company's account without any contract or agreement, which ends up generating accounting and tax problems.

Managora drafts the bespoke shareholders' agreement and the participatory loan contract (or the documentation for the contribution to equity) for your company, ready to sign. Check the conditions of each service in its procedure file and order it online: Managora prepares it for you.