Shareholders’ agreement: rules beyond the articles of association

The articles contain corporate rules and produce statutory effects following disclosure. The shareholders’ agreement is a contract and can keep more detailed commercial mechanisms confidential. It cannot override mandatory rules and should not be assumed automatically enforceable against the company or third parties.

For mechanisms that must also operate at company level, relevant clauses are reflected, to the extent permitted, in the articles and corporate resolutions.

The agreement should address real scenarios of tension, not a copied list. Mechanisms must be capable of implementation, valuation and proof.

• Reserved matters: transactions requiring an enhanced majority or investor consent.
• Roles and involvement: founders’ responsibilities, time commitment and relevant indicators.
• Vesting and leavers: what happens to a stake when a founder leaves early or is at fault.
• Financing: contributions, loans, dilution and consequences of non-participation.
• Transfer: pre-emption, lock-up, tag-along, drag-along and offer procedures.
• Intellectual property: assignment to the company and protection of previously created assets.
• Deadlock: escalation, mediation, buy-sell or another mechanism tailored to the structure.

An exit clause is useful only if it defines notice, timing, valuation, financing sources and transfer documents. Similarly, vesting must specify the affected stake, when rights vest and the distinction between justified and culpable departure.

Mechanisms imported from common-law contracts must be adapted to Romanian company and civil law, the articles of association and ONRC formalities. An English label does not guarantee the intended legal effect.

The agreement is not a document to sign once and forget. It must be updated when the company’s economic structure or control changes.

• Admission of an investor or key shareholder.
• A new funding round or loan conversion.
• Changes to founders’ or directors’ roles.
• Creation of a team option plan.
• Acquisition of another business or preparation for an exit.
• A deadlock or breach before the relationship becomes contentious.