Spanish shareholders' agreement (pacto de socios)

curl -X POST https://dealroom.todo.law/api/v1/agent/contracts \
  -H "Authorization: Bearer drk_YOUR_KEY" \
  -H "Content-Type: application/json" \
  -H "Idempotency-Key: $(uuidgen)" \
  -d '{
    "contractType": "PACTO_SOCIOS",
    "language": "en",
    "party": {
      "legalName": "Your company"
    },
    "counterparty": {
      "legalName": "The other company"
    },
    "inline": "md"
  }'

What it is and when it is used

A pacto de socios (a shareholders' agreement outside the articles) is signed by the partners (socios) of a Spanish S.L., either at incorporation or when a new partner, often an investor, joins. It adds rules the partners want between themselves: the split and vesting of participaciones, time commitment, intellectual property, management, voting, dividends, non-compete, transfers, leavers and deadlock.

The agreement is contractual. It binds its signatories, but not the company, unless its terms are carried into the estatutos. For that reason this version offers several ways to give it real force: obligations written into the estatutos as ancillary obligations (prestaciones accesorias), a penalty clause, a call option over a defaulting partner's participaciones and an irrevocable voting proxy.

Who signs it and in which role

Two parties sign: Socio A, treated by the skill as the founder or majority partner, and Socio B, the investor or minority partner. Each option is scored for its effect on each side.

All deal facts are optional: share capital and number of participaciones (used by the anti-dilution formula), vesting period and cliff (48 and 12 months by default), the bad leaver price as a percentage of fair value (50%), the reinvestment milestone and minimum dividend (25%), the drag-along threshold (75%), the length and compensation of a post-departure non-compete (12 months, 40% of last monthly pay), deadlock periods, the penalty amount, the founder's vote multiple (10), the notice of voting direction and the initial term of the pacto (10 years).

Key clauses

The agreement has 23 negotiable clauses, grouped here by subject.

Share split, vesting and acceleration

The split can be equal, based on contribution or weighted by role. Vesting can run four years with a one-year cliff, three years with a six-month cliff, two years with no cliff, by milestones, or not at all. Acceleration on a change of control can be none, single-trigger, double-trigger (a sale plus loss of role within twelve months) or partial (half of the unvested participaciones).

Anti-dilution

If the company later raises money at a lower price, the investor can be protected by a broad-based weighted average adjustment, which the skill calls the market standard; by a full ratchet, which it flags as aggressive and rare in Spain; or not at all, leaving each partner with the statutory preferential subscription right. In an S.L. the protection works between partners, through transfers of participaciones at nominal value.

Commitment, roles and intellectual property

Partners can commit full time and exclusively, full time with disclosed non-competing work, or part time with a later move to full time. A fourth option writes dedication and non-compete into the estatutos as ancillary obligations, so they also bind future holders. Roles can be equal joint and several directors (administradores solidarios), a managing director (consejero delegado) with the other founders on the board, or a functional split. New IP can be fully assigned, assigned with a licence back for non-competing uses, or limited to work product. Prior IP can be disclosed and licensed to the company, disclosed only, or neither.

Management body and majorities

Joint directors who must act together (mancomunados), a sole director rotating each year, or a board. General meeting decisions can need a simple majority, two-thirds for important matters, unanimity for key matters, or a three-tier system.

Voting structure and vote syndication

Votes can follow capital; the founder can hold Class A participaciones with a vote multiple under article 188.1 LSC, a personal privilege that lapses on transfer; or investors can hold non-voting participaciones with a mandatory preferred dividend. The skill warns that the last option does not suit a certified start-up under Law 28/2022. Separately, the other partners can vote freely, vote as the founder directs on non-reserved matters, or do so under an irrevocable proxy granted before a notary.

Profit distribution

Profits can be reinvested until an agreed milestone, with a commitment not to use the statutory separation right for lack of dividends (article 348 bis LSC); a minimum share of distributable profits can be paid each year; or the general meeting can decide each year under the statutory rules.

Non-compete and confidentiality

A broad two-year or narrower one-year non-compete after departure, a restriction during involvement only followed by six months of non-solicitation, or no contractual non-compete beyond the statutory duties of directors. Confidentiality can be broad and perpetual, last three years after departure (trade secrets indefinitely), or cover only trade secrets under Law 1/2019.

Leavers

A bad leaver can sell at nominal value, which the skill marks as high risk because courts may moderate or annul it; at a percentage of fair value, the recommended option; or everyone receives fair value and loses only unvested participaciones.

Transfers, tag-along and drag-along

Transfers can be locked for three years and then subject to a right of first refusal, subject to that right at any time, or need approval by the management body. Tag-along can apply to any sale, only above 25% of capital, or not at all. Drag-along can be triggered by holders of 75% or 90% of capital, both with price protections for the minority, or excluded.

Deadlock

Negotiation, cooling-off and mediation under Law 5/2012; a shoot-out in which one partner names a price and the other must buy or sell at it, which the skill notes favours the partner with cash; or a buyout at fair value set by an independent expert.

Enforcement and term of the pacto

A breach can trigger a penalty only; a penalty plus a call option over the defaulter's participaciones; or the full corporate bridge, which adds an ancillary obligation in the estatutos so that serious breach allows exclusion of the partner. The pacto can last for a fixed term that renews automatically, until an exit, or indefinitely, terminable on six months' notice.

Disputes

The courts of Madrid, arbitration at the Madrid Court of Arbitration, or 30 days of mediation followed by arbitration or the Madrid courts.

What the two sides usually negotiate

Socio A generally prefers founder control and protection for the company: plural voting, syndication with a proxy, the full enforcement bridge, reinvestment of profits, a strict non-compete, no anti-dilution and a 75% drag-along. Socio B generally prefers short vesting, single-trigger acceleration, proportional voting, free votes, a minimum dividend, a full ratchet and no drag-along.

When the partners disagree, Dealroom proposes the balanced positions in the skill:

• Split: equal.
• Vesting: four years with a one-year cliff.
• Acceleration: double-trigger.
• Commitment: full time, non-exclusive.
• Roles and management body: equal joint and several directors; joint directors acting together.
• Majorities: two-thirds for important matters, or the three-tier system.
• Confidentiality: three years after departure.
• Leavers: a bad leaver price set as a percentage of fair value.
• Transfers: right of first refusal.
• Deadlock: negotiation and mediation.
• Disputes: the Madrid courts, or mediation then arbitration.

On anti-dilution, IP, voting structure, syndication, dividends, non-compete, tag-along, drag-along and enforcement there is no fully neutral option; the closest to the middle are the weighted average, assignment with licence back, proportional voting, free votes, general meeting discretion, the one-year non-compete, tag-along above 25%, drag-along at 90% and a penalty only. On prior IP and on the term, two options sit equally close to the middle.

Jurisdictions and languages Dealroom supports for it

Dealroom drafts this agreement under Spanish law only, in Spanish or English. The Spanish text is authoritative. It is governed by the Ley de Sociedades de Capital, the Civil Code and the Commercial Code, applies the Workers' Statute to non-competes where relevant, and lets the partners agree mediation or arbitration before going to court. It is written for the S.L., not the sociedad anónima. For companies under California or English law, use the shareholders agreement.

Common mistakes

• Assuming the pacto binds the company. Terms that need corporate effect must go into the estatutos or be backed by ancillary obligations, penalties or proxies.
• Vesting with no mechanism. It needs purchase options between partners; where a partner is married under community property, spousal consent should be collected at signing.
• Nominal value for vested participaciones of a bad leaver. It is the option most exposed to moderation by the courts.
• Non-voting participaciones in a certified start-up. The mandatory dividend conflicts with start-up status.
• A dividend waiver kept in the pacto only. It binds only the signatories.
• A shoot-out between partners of unequal means. It favours whoever can afford to buy.
• An indefinite pacto. Any partner may end it on notice, which weakens voting covenants.