Technology

Shareholders' agreement for a tech start-up: vesting, funding round and exit

Nextica Law & Tax drafts and negotiates the shareholders' agreement of technology start-ups: founder vesting with a cliff period, anti-dilution, tag along and drag along with their thresholds, investor information rights, and how convertible notes and the round's instruments fit in. Also the stock option or phantom share plan, where Spain's Law 28/2022 on start-ups changes the employee's tax treatment and, with it, the design of the plan.

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The agreement is not signed for the good day: it is signed for the day a founder leaves, or an offer arrives and one of you does not want to sell.

What's included

1. Mapping the table before drafting

who contributes capital, who contributes work, who contributes code already written, and what each expects three years out.

2. Founder vesting with a cliff period, and a consolidation schedule measured in product milestones and not only in months.

3. Exit clauses

what happens if a founder leaves voluntarily and what if they are asked to leave, with the valuation of their shares fixed in advance.

4. Protection against dilution in the next round, plus tag-along and drag-along rights, with the majorities that trigger them.

5. Information rights and reserved matters

which decisions the director cannot take alone once an investor comes in.

6. Non-compete and non-solicit between partners, with a proportionate radius, term and consideration so the clause holds up.

7. Fitting the agreement to the articles and to what is registered, because what the agreement promises and the articles do not allow surfaces on the day of the round.

THE AGREEMENT IS SIGNED FOR THE BAD DAY

Nobody argues about a shareholders' agreement while things are going well. These three appear exactly when they can no longer be negotiated:

A founder who leaves with their full stake

without vesting, someone who walks out after eight months keeps their entire shareholding and blocks the next round, because no investor joins a table with an absent shareholder who still votes.

An agreement promising what the articles do not allow

a Spanish limited company has strict limits on holding its own shares and share transfers are not free. An agreement and articles that do not talk to each other are discovered in the round's deed.

Companies Act

An excessive non-compete

a clause with no reasonable limit in time, territory and activity, or without proportionate consideration, is struck down in full and leaves the company with no protection at all rather than with less protection.

DIFFERENCE BETWEEN STATUTES AND SHAREHOLDER AGREEMENT

	Articles of Association	Parasocial pact
Is it public?	Yes — registered in the Commercial Registry. Opposable to all.	No — confidential. Only links to the signatories.
Is it mandatory?	Yes — without bylaws there is no society.	No — but essential with 2+ partners or investors.
Modification	Board agreement + notarial deed + registration.	Private agreement between the signing partners. No registration cost.
What regulates	Basic structure: capital, organs, legal quorum, social object.	Relationships between partners: exit, entry, investment, governance, conflicts.
Prevalence	In front of third parties and society itself.	Between the signing partners. Not enforceable against the company or third parties.

Is it public?

Articles of AssociationYes — registered in the Commercial Registry. Opposable to all.

Parasocial pactNo — confidential. Only links to the signatories.

Is it mandatory?

Articles of AssociationYes — without bylaws there is no society.

Parasocial pactNo — but essential with 2+ partners or investors.

Modification

Articles of AssociationBoard agreement + notarial deed + registration.

Parasocial pactPrivate agreement between the signing partners. No registration cost.

What regulates

Articles of AssociationBasic structure: capital, organs, legal quorum, social object.

Parasocial pactRelationships between partners: exit, entry, investment, governance, conflicts.

Prevalence

Articles of AssociationIn front of third parties and society itself.

Parasocial pactBetween the signing partners. Not enforceable against the company or third parties.

Frequently asked questions

Do we need a shareholders' agreement if we already have articles of association?

Yes, because they do different jobs. The articles are public and govern the company towards everyone; the agreement is private and governs the relationship between the shareholders who sign it, including matters that do not fit in the articles or that you would rather not publish: vesting, time commitment, roles, sale thresholds. What matters is that both texts say the same thing where they overlap, because a contradiction between them is exactly what conflicts are made of.

When is it signed: at incorporation or when the investor comes in?

At incorporation. The agreement signed with a round on the table is, in practice, drafted by the investor, and the terms between founders get negotiated in a hurry with little room. A solid founders' agreement does not prevent adapting it later —in fact it is revisited at every round— but you arrive at that negotiation with the internal split already settled.

More frequently asked questions · DERECHO MERCANTIL

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