In capital companies, in addition to paying up the subscribed capital, shareholders may assume additional obligations towards the company, known as ‘ancillary obligations‘.
What are ancillary obligations?
Ancillary obligations can be understood as commitments that one, several or all shareholders assume towards the company, which may involve the obligation to give, do or refrain from doing something.
For this reason, ancillary obligations are a mechanism of great economic and legal importance, mainly in small and medium-sized companies where the value contributed by shareholders is essential to the smooth running of the company, serving as instruments to strengthen shareholders' ties and commitments to the company.
Features
Legally, ancillary obligations are regulated in articles 85 et seq. of the Capital Companies Act (LSC), which defines them as follows: "the articles of association may establish ancillary obligations, specifying their concrete and specific content, as well as whether they are to be performed free of charge or for remuneration, and any penalty clauses inherent in their non-performance.
From the above definition, the main features of ancillary obligations can be drawn:
- Statutory nature: They must be established in the Articles of Association of the company, which must define their content, as well as whether they are free of charge or remunerated and, where applicable, the penalty clauses applicable in the event of non-performance. Therefore, to be considered as such, they must not be mere commitments by the shareholders to the company, but must be established in the company's articles of association.
- Optional nature: they may be established for all or some of the shareholders or the obligation to perform the ancillary obligations may be linked to the ownership of one or more specific shares (i.e. linked to a specific class of shares).
- Ancillary nature: They do not form part of the company's share capital.
- Specific and defined content: the specific content, its nature (free of charge or remunerated), and the consequences of non-performance must be specified.
Therefore, they may be:
- Free of charge: in this case no remuneration or consideration of any kind is received in exchange for performing the ancillary obligation.
- Remunerated: the articles of association must specify precisely the compensation that shareholders will receive for performing these obligations. This compensation does not have to be in economic terms; it could be in the form of additional benefits, special rights or any other form of remuneration agreed upon and in accordance with applicable law. However, it is essential that the articles of association precisely specify both the nature and the amount of the remuneration. In addition, it must be borne in mind that this remuneration may not exceed the value assigned to the corresponding ancillary obligation.
Modification of the ancillary obligation
Another particularity of this type of obligation is that its creation, modification or termination requires the approval of the company's General Meeting, as well as the individual consent of the obligated shareholders.
In this regard, it is important to bear in mind that, since they are established in the company's own articles of association, the General Meeting resolution must be adopted with the requirements provided for amending the articles of association.
Transfer of shares with an ancillary obligation
On the other hand, shares that carry the performance of an ancillary obligation will have certain particularities as regards their transfer regime.
In this regard, article 88.1 LSC provides that the company's authorisation will be required for the voluntary inter vivos transfer of any share belonging to a shareholder personally obliged to perform ancillary obligations, and for the transfer of those specific shares to which this obligation is linked.
Furthermore, section 2 of that provision establishes that, unless the articles of association provide otherwise, in limited liability companies the authorisation will be the responsibility of the general meeting and in public limited companies of the directors, and it shall be understood that the request has been granted if two months pass from its submission without the company having ruled on it.
Usefulness of ancillary obligations
Finally, as indicated above, ancillary obligations are a fundamental instrument for strengthening the ties or commitments of shareholders to the company.
As indicated above, the ancillary obligation may consist of giving, doing or not doing something.
Thus, examples of ancillary obligations could include the obligation to supply certain products, provide financing or act as guarantor for the company, provide certain services (i.e. in professional companies) or even, as we have indicated, obligations not to do something, such as not carrying out activities that would compete with the company itself.
On the other hand, following the Resolution of the Directorate General of Registries and Notaries of 26 June 2018, ancillary obligations have been used as mechanisms to reinforce compliance with family protocols or shareholder agreements entered into internally to regulate relations between shareholders and with the company. Including in the articles of association the obligation to comply with the family protocol or shareholder agreement makes this type of agreement more effective since, being regulated in the articles as an ancillary obligation, non-compliance may give rise not only to the consequences established therein, but also to those provided for in the Capital Companies Act for non-performance of ancillary obligations, such as the legal exclusion of the defaulting shareholder from the company with effect vis-à-vis the company.
