As Startups have gained greater visibility in the economic scenario and are some of their characteristics that differentiate them from traditional business models, among them, the brand of a scalable and repeatable business model that allows for accelerated growth with lower costs and greater investor participation, in addition the innovative, disruptive and anti-bureaucratic aspect.
However, from a legal point of view startups They are companies and go through the same stages of incorporation, such as choosing the best corporate model, and then the inherent implications for founders who assume the risk of undertaking, including the possibility of future conflicts between their partners.
It is important to highlight that, as mentioned, the startups have characteristics that are inherent to them, and therefore, although from a legal point of view they are also companies regulated by the same legislation as traditional models, their peculiarities must be taken into account in the preparation of the documents that constitute them and generate regulation in the context of internal.
The founders must do their utmost in the process of establishing the startup the execution of documents that protect the interests of the partners and the company, as well as govern the relationship between the parties that make up the business.
In this sense, in addition to the possibility of initially signing the Memorandum of Understanding (MOU), also called pre-constitution agreement, which will regulate the terms and conditions between the partners of the future startups and after choosing the corporate model, with the preparation of the social contract or bylaws, which are the instruments that constitute the limited and anonymous company, respectively, there is the possibility of also concluding the so-called partners' agreement.
The partners' agreement, or shareholders' agreement, in the case of public limited companies, is a parasocial document, which will be filed in the Company's own books and which binds only the partners and not the company itself, and which aims to connect the signatory parties in the composition of common interests.
The shareholder agreement is provided for in the Corporation Law (public limited company) and its article 118 regulates the requirements for the agreement to be effective. In the case of limited companies, despite the absence of legal provision, their use may be permitted, as long as their articles of incorporation contain a clause for the supplementary adoption of the Corporation Law.
Below are some of the matters that the partners' agreement may provide for:
Company administration: the agreement may provide for who will manage the company, whether they are a partner or not, they may also provide for the necessary qualifications, term of office and rules for managing the company.
Deliberation quorums: The applicable deliberation quorums are provided for in the legislation of each corporate model, however, through the partners' or shareholders' agreement, the partners may decide on a different quorum for certain matters, including binding the vote of founders and investors as mandatory on strategic matters of the business.
Right of first refusal: the right of preference for partners to acquire a shareholding, in relation to third parties, is provided for in the Civil Code for limited companies, however, in the case of public limited companies there is no legal provision, so the shareholders' agreement may provide for of the conditions and deadlines that must be observed by shareholders. It is important to highlight that the absence of provision in this regard leaves partners exposed to the entry into the company of a foreign third party, without being given the possibility of acquiring shares.
Put option e call options: These are clauses that govern the situations and terms in which partners may exercise the right to sell their shareholding (put option) or purchase of equity interest (call options), which may be linked to the occurrence of external facts or the deliberation of matters on which the partners are unable to reach a consensus, and which are objectively provided for in the partner agreement, for example. The provision of this clause, when written in a clear and objective manner, can help to reduce and resolve impasses between partners.
Tag Along (joint selling right): clause that usually allows minority shareholders to exercise their right to withdraw from the company under the same conditions granted to the third party acquiring and entering the business. This is a protection mechanism for shareholders who do not wish to coexist with new shareholders, with whom they do not identify and may come into conflict when making decisions.
Drag Along (joint sale obligation): In this case, the clause focuses on protecting the majority (controlling) partner, who upon receiving an investment proposal, demands the sale not only of his share, but also of minority partners, under the same conditions or at a minimum price to be adjusted, in hypothesis that the investor will not be interested in participating in the business if minority shareholders are part of the corporate structure, for example.
Valuation: partners will also be able to provide information on the criteria and methods for evaluating the company, which is essential for situations involving partner departure, sale, acquisition and shareholding and which can generate some type of conflict that can be avoided.
It is important to highlight that the Partners Agreement will be drawn up according to the interests of the partners, therefore, in addition to the matters mentioned above, there are other possibilities that the document may provide, such as: rules that govern the departure of a partner through unilateral withdrawal or death , rules for joining new partners, capital increase, conflict resolution criteria, form of profit distribution, among other topics that may be of interest to partners.
During the corporate relationship, partners will not always decide unanimously on certain topics, which can generate conflicts, situations that, depending on the severity and relevance, can compromise the longevity of the business.
The partners' agreement aims to protect the individual interests of the partners, regulate how conflicts will be resolved, how the partners must resolve a certain issue that is in a gap in the pre-established rules, and can also reinforce the founders' agreements provided for in the Memorandum of Understanding in the development phase. pre-constitution and which are linked to the way in which the parties to the business will relate.
Another important highlight in relation to the partners' agreement is that the preparation of this type of documents demonstrates greater maturity and transparency of the corporate relationship, which consequently, when evaluating the business by a potential investor, can be taken into consideration.
It is always worth emphasizing that it is advisable for partners to carry out all these “arrangements” at a time when the relationship between them is harmonious and stable, as in times of crisis, the tendency is for the agreement to resolve conflicts to be more difficult. Therefore, it is worth investing time and dedication in legal care that makes the business viable in the future.
By Vanessa Naunapper
References
ARONNE, Roberta D. dos S. and TOSCHI, Stefania G., Admissibility and validity of the partners' agreement in limited liability companies, Jota Opinion & Analysis, published on March 23. 2018, available at: . Accessed on July 23032018th. 14.
GIOVANINI FILHO, Renato. 5 clauses that protect partners in thorny business issues, Endeavor, published on February 14th. 2017, available at: < https://endeavor.org.br/socios/acordo-de-acionistas-5-clausulas-que-nao-podem-faltar-ou-5-clausulas-que-nao-podem-faltar -to-protect-the-members/>. Accessed on July 14th. 2019.
RODRIGUES, Amanda Visentini. Corporate aspects of the constitution of the startup. In: OIOLO, Erik Frederico, coordinator, Law manual for startups. São Paulo: Thomson Reuters, 2019.
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