Shareholders’ Agreement: An Essential Instrument for Legal Security in Business Relations

Shareholders’ Agreement: An Essential Instrument for Legal Security in Business Relationships

In contemporary business corporations, characterized by dynamic organizational structures and increasingly volatile economic environments, internal governance has gone from being a merely operational issue to becoming an essential pillar of business sustainability and longevity. In this context, the shareholders’ agreement has established itself as one of the most relevant instruments for regulating relationships between shareholders, functioning as a mechanism for conflict prevention, strategic alignment, and preserving corporate stability.

More than a contractual appendix, the shareholders’ agreement is a concrete expression of the private autonomy recognized by the legal system, allowing shareholders to establish, in a binding manner, the rules that will govern their coexistence and participation in the company, in aspects often not provided for—or insufficiently regulated—in the articles of association or bylaws. Its adoption represents a qualitative advance in corporate governance, as it provides predictability in decisions and legal certainty in transitions.

What is a Shareholders’ Agreement?

A shareholders’ agreement is a contractual instrument signed between the partners of limited liability companies or, in the case of corporations, by the shareholders, with the purpose of regulating aspects of the corporate relationship that go beyond what is provided for in the articles of association or bylaws. Expressly provided for in Article 118 of the Corporations Law (Law No. 6,404/76), it is widely accepted and applicable to limited liability companies, by analogy and due to the autonomy of contractual will recognized by the Civil Code.

Applications and Scope

The clauses of a shareholders’ agreement can be quite varied and cover virtually any matter of interest to the partners. Examples include:

Voting and veto rights in corporate resolutions;
Formation of controlling blocks or protection of minority shareholders;
Profit distribution policies;
Procedures for partner entry and exit (tag-along, drag-along, shotgun clauses, among others);
Rules for succession or partial dissolution of the company;
Confidentiality and non-competition obligations; and
Strategic guidelines and ethical principles of the company.
Importance for Corporate Governance

The shareholders’ agreement is a powerful tool for ensuring effective corporate governance, as it allows for clear and binding regulation of how the company’s strategic and operational decisions will be made. It protects the company from future conflicts and ensures that the rules for resolving them are established with the knowledge of all partners.

Therefore, it directly contributes to:

Reducing corporate disputes;
Management stability;
Protection against abuse of power;
Institutional strengthening of the company. Legal Security in Corporate Relations

In times of instability, such as the departure of a partner, disagreements over profit distribution, or the sale of shares, a solid agreement allows for the resolution of disputes without the need for lengthy and costly legal proceedings. It can even be a prerequisite for investments or credit concessions, ensuring that the company has well-established governance rules that will ensure its continued existence.

Technical Basis: Private Autonomy and Corporate Relations Discipline

From a doctrinal perspective, the shareholders’ agreement falls within the context of the private discipline of economic activity, guided by the principles of autonomy of will and equality among individuals. As Fábio Ulhoa Coelho teaches, the legal system recognizes partners’ relative ability to self-regulate their interests, as long as the limits established by the current legal order are respected.

In this sense, the shareholders’ agreement represents a legitimate manifestation of private autonomy, serving as a contractual tool for structuring the company’s internal governance according to the specificities of the business and the peculiarities of the relationship between the partners. The regulation of these relationships should seek to equalize the conditions between those involved, allowing for the settlement of interests, often asymmetrical, in a proportional and legally effective manner.

Furthermore, when dealing with contractual relationships between individuals, legal dogma aims to create conditions for resolving conflicts with minimal social disruption. The shareholders’ agreement fulfills precisely this role, anticipating potential disagreements and establishing objective and secure criteria for conducting business activities, avoiding litigation and strengthening trust in the business environment.

Advantages of Confidentiality: Non-Publication of the Agreement

A relevant feature of the shareholders’ agreement is that, unlike the articles of association or bylaws, it does not need to be filed with the Board of Directors.