The memorandum of association is the document that establishes the basic conditions for setting up a company, such as the company name, the corporate purpose, the distribution of shares, among others.
For the contract to be valid, the law establishes a series of mandatory clauses, which lay down the basic premises for registering the company. In addition to these clauses, there are also optional clauses, which reflect the “spirit” of the company and are responsible for the legal excellence of the articles of association.
The partners are free to insert any clauses they deem necessary, as long as they comply with the laws governing company law, civil law and other relevant laws.
We’ll talk about some of these clauses below. However, it is important to analyze whether the provisions fit better in a shareholders’ agreement, with the aim of limiting the accessibility of such provisions to the public.
Check out some of the optional clauses!
- Supplementary regulation by the Corporations Law
According to the Civil Code, it is possible for a limited liability company to be supplementarily regulated by the Corporations Law (Law 6.404/1976). This means that the provisions of the Corporations Law will apply to the Ltda only insofar as they are not specifically provided for in the legislation governing this type of company.
Thus, in situations where the Corporations Law does not deal specifically with a certain subject that applies to the Ltda, the supplementary rules of that legislation can be used in a subsidiary manner, to fill any gaps or to provide complementary guidance to the application of the Civil Code.
It is important to emphasize that the application of the supplementary rules of the Corporations Law to Ltda must be done carefully and with due adaptation, taking into account the particularities of the limited liability company and the specific provisions of the Civil Code that regulates it.
Existem inúmeras vantagens em seguir o regramento das S/As. Uma das principais, de acordo com o contexto do artigo, é a possibilidade de inclusão de cláusula que obrigue o pagamento mínimo de dividendos. Além disso, poderá ocorrer a emissão de diferentes tipos de classes de quotas (preferencias/ordinárias), entre outras.
- Death of a partner and divorce
This is another important point of optional clauses, because it involves delicate moments in the partner’s personal life.
Thus, dealing with them in advance in the articles of association gives the partners the possibility of establishing the mechanisms they feel are most appropriate for the company, avoiding the general regulations of the Civil Code, if they so wish.
In this way, the partners will be able to decide what will happen in the event of death or future divorce, i.e. whether or not it will be possible for heirs to join the company, whether there will be requirements for heirs to join or even how the assets will be calculated and paid out.
- Extrajudicial exclusion of partners
Another important governance issue is the provision for the exclusion of partners for just cause by extrajudicial means, because if this possibility is not expressly included in the contract, exclusion will only be possible through the intervention of the Judiciary.
By opting to provide for this possibility, the partners must outline the causes that authorize the exclusion, as well as the procedure that will be adopted and, consequently, they must also stipulate the conditions for calculating assets and the deadline for payment.
- Deliberations
According to the Civil Code, most decisions are taken by simple majority (50% +1). There are exceptions with higher quorums, such as for amending the articles of association (75%).
However, there is nothing to prevent the shareholders from changing this quorum (always the highest) or from providing security clauses, stipulating veto power or the need for unanimity for a given decision. These “solutions” can be used strategically, especially by minority shareholders, so that they have more means to assert their will in deliberations.
Finally, we would like to point out that these provisions are only suggestions. The incorporation of a company and the establishment of provisions in the articles of association should always be accompanied by specialized professionals.
If you have any questions, our team is at your disposal.
