What are the typical contents of a shareholders' agreement and what are the limits?

Purchase rights, pre-emptive rights and rights of first refusal between the shareholders are often agreed in an ABV. It also contains a number of important general clauses.

The shareholders' agreement serves to integrate the shareholders into the company because this is not possible under company law (see blog post).

Content of a shareholders' agreement

The following general clauses are typical of the content of a shareholders' agreement:

• The general intention of the shareholders is set out in a preamble. In addition, the contractual objective, such as securing co-determination in the company, is set out in a clause.
  
• The share capital and the shareholdings of all contracting parties should be listed.
  
• The joint deposit of the shares with a trust company should be regulated, especially in the case of bearer shares.
  
• Contract duration and termination: Should the ABV be concluded for an indefinite period or for a specific date? It is also important to define the grounds for exclusion of contracting parties.
  
• Regulation of legal succession in the event of the death or divorce of a contracting party.
  
• Obligations of the parties: This section can be used to define voting rights obligations, pre-emptive rights and obligations when selling shares, pre-emption and purchase rights, or non-disclosure agreements. There are only a few substantive limits (see below).
  
• Non-competition clauses of the contracting parties if such are intended.
  
• Contractual penalties of a precisely defined amount are often provided for in order to enforce the ABV in the event of a breach of contract.
  
• A severability clause prevents the contract from continuing to exist in the event of partial invalidity of individual provisions of the GTC.
  
• Determination of the applicable law and place of jurisdiction as well as mediation clauses or arbitration agreements to ensure clarity in the event of legal disputes.
  

Content limits

The content of a shareholders' agreement must adhere to the prohibition of excessive commitment in Art. 27 of the Swiss Civil Code. This provision states that no one may bind themselves excessively or waive their legal capacity and ability to act. It would therefore be inadmissible, for example, to conclude a shareholders' agreement that cannot be terminated and has a term of 50 years.