In the Resolution issued on June 26, the DGRN ruled on a case of high interest, namely the possibility of linking the statutes of a commercial company with the agreement of partners signed by the partners of the same, through the establishment of an ancillary provision that provides for requiring the partners of the company to comply with the obligations contained in that parasocial agreement.
In the case under resolution, a public limited company approved – by unanimous agreement of all partners adopted at a general meeting – a family protocol that was formalized through a notarial deed (whose nature can be equated to a partners' agreement), and at the same meeting, also unanimously, the modification of the company statutes by introducing an article that established an ancillary provision with the following literal wording:
"Article 9 bis. Ancillary Obligation. All partners, whether natural persons or legal entities, who are considered 'family members' or members of a family branch, are subject to the non-remunerated ancillary obligation of complying with and observing the provisions agreed upon by the partners in the family protocol/articles of association, which are recorded in a public deed authorized on July 18, 2017, before the Notary Public of Valencia, Mr. Javier Máximo Juárez González, and its subsequent amendments. The following rules apply to its application: a) Without prejudice to the restrictions on the transfer of shares provided for in the bylaws, the voluntary transfer of shares [sic for shares] due to the ancillary obligation imposed on all partners is subject to the authorization of the company, with the authority to grant such authorization resting with the board of directors." If the company has not responded within two months of the application being submitted, the authorization will be considered granted. b) The assessment of any breach of the imposed ancillary obligation is subject, in the first instance, to the discretion of the governing body. Once the board has determined that such a breach may have occurred, it will notify the alleged breacher by any reliable means that proves receipt. The interested party will have fifteen days from the day following receipt to submit any relevant arguments. The governing body will issue a final decision within a maximum of one month from the receipt of the arguments or the expiration of the period for submitting them. c) Voluntary non-compliance with this ancillary obligation is a legal ground for exclusion, which will be subject to the provisions of these Bylaws and applicable regulations, without prejudice to any other applicable legal consequences
Through this operation, the intention was for the regulation contained in the partners' agreement to acquire the status of a statutory rule through the introduction of an accessory provision in the company statutes that consisted of requiring the partners to comply with and observe the provisions of the partners' agreement.
The registration of this amendment to the bylaws was rejected by the Valencia Mercantile Registry, which considered that the ancillary provision introduced did not comply with the regulations governing such provisions. These regulations require that the provision must express its specific and defined content, and the reference to the shareholders' agreement (although identifying the protocol and the date of its execution before a notary) did not meet these requirements of specificity and definition. Furthermore, the Registry considered that the shareholders' agreement constituted a confidential document with limited access for third parties.
Finally, when the DGRN rules on the appeal filed against the refusal of registration, it modifies the initial criterion of the Valencia Registry, authorizing the registration of that article in the company's articles of association.
“In the present case—leaving aside the fact that the family protocol was unanimously approved by all shareholders at the same general meeting—the obligation constituting the ancillary contribution is perfectly identified through its formalization in the aforementioned public deed, such that its entire content is determined extra-statutory in a manner perfectly knowable not only by the current shareholders who unanimously approved it but also by future shareholders who, upon acquiring the shares, become bound by the ancillary contribution, the content of which is statutorily determinable—pursuant to Article 1273 of the Civil Code—in the manner provided. It must be concluded that the clause in question is registrable, as it does not exceed the general limits of freedom of contract, since it does not contravene the law nor the principles governing public limited companies (see Articles 1255 and 1258 of the Civil Code, Article 28 of the Capital Companies Law, and Article 114.2 of the Commercial Registry Regulations).”
Consequently, this Resolution by the DGRN represents a shift in the approach largely followed until now by commercial registries (and it is unclear whether this will become the norm in the future). Despite the doubts it raises, it cannot be denied that it may allow companies, in order to strengthen the enforceability of shareholder agreements, to introduce ancillary obligations of this type into their articles of association. However, it is worth emphasizing the uncertainty that still surrounds this potential approach and, therefore, the advisability, where possible, of incorporating the obligations contained in shareholder agreements into the articles of association, in order to align and standardize the rules of both documents and, where possible, avoid contradictions or conflicting legal frameworks.
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A graduate in Law from the University of Barcelona and with a Master's degree in Business Law from the same university, he worked at the law firm Alonso-Cuevillas Advocats and later joined the Civil and Commercial Litigation department of the law firm Bufete Bueno Bartrina. He then joined the team at the firm Casamitjana-Cuyas-Morales, and subsequently continued his career at Bufete Herrera Advocats, in the Commercial and Litigation department. In November 2015, he joined aÀmbitJurídic i Econòmic, SLP, as a professional partner, to head the Commercial and Insolvency practice.
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