Capital companies. Corporate resolutions. Challenges. Parasocial agreements and their effectiveness. Validity and effectiveness of shareholders' agreements. Omnilateral agreement. The principles of relativity of contracts. Good faith. The possibility of demanding compliance with the shareholders' agreement, on distribution of the share capital and modification of the articles of association.
The controversial issue is therefore centered on the effectiveness that the parasocial or extra-statutory agreements entered into by all the partners should have against the company that has not been a party to such agreements (Supreme Court Judgment of 7/04/2022).
The term "parasocial agreements" is used by case law to refer to those agreements entered into by all or some of the partners of a commercial company with the purpose of "regulating, with the force of the binding bond between them, aspects of the corporate legal relationship without using the channels specifically provided by law and the bylaws", agreements that are considered valid "provided that they do not exceed the limits imposed on the autonomy of the will. It is an associative contract different from the corporate contract, which is not integrated into the legal person system. Incorporated into the current art. 29 of the revised text of the Capital Companies Act (LSC), which states that: "The agreements that are kept reserved between the partners shall not be enforceable against the company"; consequently, the shareholders' agreements are valid and effective between the parties that sign them, but not enforceable, and therefore not enforceable against the company. For third parties the contract is res inter alios acta [a thing made between others] and, consequently, neither benefits them (nec prodest) nor harms them (nec nocet).
Presupposed the validity of the shareholders' agreements, the problem that arises most frequently is not that of their validity but that of their effectiveness when such agreements are not transposed into the articles of association. The conflict arises from the existence of two contradictory regulations, the one resulting from the bylaws (or from the legal provisions in the absence of a specific provision in the bylaws) and the one established in the shareholders' agreements, not transposed into the bylaws, both of which are valid and effective. The problems arising from this contradiction are more pronounced when the shareholders' agreement has been adopted by all the partners who remain so when the conflict arises (the so-called "omnilateral agreement"). When an attempt has been made to challenge a corporate resolution, adopted by the shareholders' meeting or by the board of directors, for the sole reason that it is contrary to the provisions of a shareholders' agreement, this court has rejected the challenge. Without prejudice to the intervention, where appropriate, of the limitations imposed by the requirements derived from good faith and the prohibition of abuse of rights, but apart from such cases, the effectiveness of the perfectly lawful shareholders' agreement cannot be defended by attacking the validity of the corporate resolutions that are contradictory to the same.
