Ancillary benefits act as an instrument to reinforce agreements between partners.
What are those? agreements reached between them to regulate the internal functioning of the company, as well as the rights and obligations of the partners.
However, They are only valid and effective between the partners who subscribe to them.larvae, nymphs, and adults, so do not affect society.
In order for them to do so, they would have to be incorporated into the company's bylaws.
This incorporation is done through accessory benefits.
Let's see them:
What are accessory benefits?
An accessory benefit is any obligation, whether of give (such as the transfer by the partner or partners to the company of some asset or property right), of do (such as providing services to society) and even not to do (such as non-competition to society), imposed on some or all of the partners.
It may or may not be linked to specific shares or stocks, but only if the benefit makes economic sense and is not part of the share capital.
Characteristics of accessory benefits
Ancillary benefits must be specific and determinable.
For example:
- The obligation of the partner to carry out a certain activity.
- The right of the partner to receive remuneration for his work.
- The obligation to work exclusively for the company or not to participate in the market.
- Not exercising competition against the company, etc.
Ancillary benefits in the corporate statutes
El art. 86 LSC allows that “in the statutes of capital companies, additional benefits other than contributions are established, stating their specific and determined content and whether they are to be made free of charge or through remuneration, as well as any penalty clauses inherent to their non-compliance.
In no case will these form part of the share capital.
The bylaws may establish them as mandatory for all or some of the partners or link the obligation to perform ancillary services to the ownership of one or more specifically determined social shares or shares.
Therefore, if they have not been foreseen, there will be no place for them, but if they are foreseen, they can be established.
And in that case, we will have to attend to the Article 187 of RD 1784/1996, of July 19, approving the Regulations of the Companies register, which states that "the statutes will detail their regime, stating their specific and determined content, which may be economic or in general any obligation to give, do and not do, as well as free or paid."
In the event that be rewarded, The statutes must determine the compensation to be received by the partners who carry them out., without in any case being able to exceed the value corresponding to the service.
Importance of accessory benefits
By including in the bylaws the obligations by which the partners undertake to provide a specific service to the company, the agreements reached acquire a relevance that goes beyond the parties involved.
These agreements They are not only valid for the partners who subscribe to them, but also become effective in relation to the company.
The linking of the partners' agreements with the company, and vice versa, provides a greater protection of the rights and obligations regulated through accessory benefits, especially in situations of default.
Mechanisms are established for resolve conflicts, which may even include the right of society to exclude the partner which is breached, or the right of the partner to withdraw from the company if it or the other partners fail to comply with the obligations established through accessory benefits.
In the case of limited companies, ancillary benefits may make ownership of the shares conditional on compliance with certain obligations.
This means that if a partner fails to comply with the agreed additional services, he or she may be excluded from the company.
On the other hand, The partner's position is also strengthened.
For example, if the company fails to meet the remuneration obligation agreed upon through an accessory benefit, the partner has the right to leave the company.
Additional benefits They can also affect the investing partner, obligating him not only to the company, but also to other partners.
For instance, This may occur when the investment partner's participation in future financing rounds is agreed..
When do accessory benefits expire?
The obligations established in the accessory benefits are created, modified and cancelled by agreement between the partners and the company.
Therefore, both to modify and to cancel the company shares, the consent of both the related partner and the company will also be required, unless the bylaws establish a specific period for the duration of the accessory benefit.
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