Shareholder Binding Agreement Switzerland: The Best Tips for Founders & SME

The establishment of an LLC in Switzerland represents an important step for many entrepreneurs to realize their business ideas. The shareholder agreement (GBV) plays a central role and is often crucial for the long-term success of the company.

A shareholder agreement is intended to regulate the relationships between the shareholders and create clear structures. This article explains how to optimally utilize the shareholder agreement. The goal is to provide you with a comprehensive overview of the function and significance of the contract and to illustrate the benefits specifically for start-ups and SMEs.

This article gives you a detailed overview of the key aspects of the shareholder agreement in the establishment of an LLC.

What is a shareholder agreement?

A shareholder agreement (GBV) is a central document in the establishment of an LLC in Switzerland. It regulates the rights and obligations of the shareholders among themselves and supplements the corporate law provisions laid down in the Code of Obligations.

This contract is fundamentally important as it creates the basis for smooth cooperation between the shareholders and minimizes potential conflicts in advance. The GBV goes beyond the legal minimum requirements and enables the shareholders to contractually record their specific needs and ideas. It offers a legal framework for important aspects such as profit distribution, management, voting rights, and handling of shareholdings. The GBV is particularly valuable in regulating succession scenarios or when shareholders join or leave. Due to its flexible design, it can be adapted to changing business conditions and corporate structures.

Essential Features of the GBV:

• Private Agreement: The GBV is a confidential document between the shareholders

• Flexibility: Can be adjusted at any time if all shareholders agree

• Supplementary Function: Extends the legal and statutory provisions with individual agreements

Main Purpose and Significance:

The GBV mainly serves:

• Conflict prevention through clear regulations

• Ensuring business continuity

• Protection of shareholder interests

The freedom of contract allows shareholders to largely shape their relationships according to their own ideas, as long as the provisions do not violate mandatory law.

The Role of the Shareholder Agreement in LLC Establishment

The shareholder agreement is central to the establishment of an LLC, especially for start-ups and SMEs. It sets clear rules and structures to avoid conflicts and ensure harmonious cooperation.

For start-ups and SMEs, the shareholder agreement offers numerous advantages:

• Legal Clarity: By making precise determinations in the contract, uncertainties are reduced, and the legal situation is clearly defined.

• Flexibility: The contract can be individually adapted to the needs of the company and its shareholders.

• Protection of Founder Interests: It protects the interests of the founders through provisions on voting rights, profit distribution, and share transfers.

• Facilitated Decision Making: Clear decision-making processes promote efficient operations and prevent blockades.

These aspects make the shareholder agreement an indispensable tool for successful business establishment in Switzerland.

Important Clauses in the Shareholder Agreement

The shareholder agreement (GBV) contains crucial clauses that regulate the relationship between the shareholders. In particular, the following clauses may be relevant:

Non-Competition Clause

The non-competition clause prohibits shareholders from competing directly with the company during their membership and for a certain period after leaving. This clause protects the company from the loss of knowledge and expertise that the shareholder acquires during their activity.

Voting Rights Regulations

The voting rights of the shareholders are clearly defined here. Often a certain quorum is set for important decisions, ensuring a unanimous opinion among the shareholders is necessary for specific resolutions of great significance.

Profit Distribution

This clause specifies how profits are distributed within the LLC. It can provide both for pro-rata distribution according to shares and other distribution regulations.

Exclusion Clause

This regulation allows a shareholder to be excluded from the LLC under certain conditions. This ensures that only active and committed shareholders remain part of the company.

Succession Regulation

This regulates how the shares of a deceased or departing shareholder are handled. This clause ensures that the shares do not fall into undesirable hands.

Preemption Right

The preemption right is a key protective clause in the shareholder agreement. It gives a shareholder the right to acquire another shareholder's shares before they can be sold to third parties. This prevents undesirable external influences and ensures that the remaining shareholders retain control over the company. The preemption right strengthens the trust among the shareholders and promotes harmonious coexistence.

Co-sale Right

This clause allows shareholders to sell their shares jointly with another shareholder. This promotes unity and stability within the LLC.

Practical Example: The IT-Solutions LLC

The IT-Solutions LLC was founded by three shareholders: Anna Meyer (40% shares), Bernd Schmidt (35% shares), and Christian Weber (25% shares). In their shareholder agreement, they established the following specific regulations:

Preemption Right: When Christian Weber wanted to sell his shares to a competitor after five years, the agreed preemption right came into effect. Anna Meyer and Bernd Schmidt could acquire the shares under the same conditions offered by the competitor.

Succession Regulation: After the unexpected death of Bernd Schmidt, the foresighted succession regulation in the GBV stated that his shares would not pass to his heirs but could be taken over by the remaining shareholders.

Profit Distribution: Despite different share ratios, a performance-based profit distribution was agreed upon in the GBV, based on the individual contribution to the company's success. This motivates all shareholders to actively engage.

This example shows how the GBV ensures stability and operability of a company in practice.

Creating a Shareholder Agreement: Steps and Legal Advice

Creating a Shareholder Agreement (GBV) requires precise procedures and legal expertise. The following steps are crucial:

Needs Assessment: Clarification of the individual needs and goals of the shareholders.

Legal Advice: Involvement of experts to ensure that all legal requirements are met.

Contract Drafting: Drafting a detailed contract that considers all important clauses.

Negotiations: Discussion and adjustment of the draft among the shareholders.

Written Documentation: Necessity of a written record to clearly define the rights and obligations.

The importance of written documentation cannot be overemphasized. It ensures legal certainty and serves as a binding proof document for all parties.

Frequent Questions about the Shareholder Agreement

The shareholder agreement (GBV) often raises questions regarding rights and obligations. Here are some of the most common questions that provide clarity:

• What are the main rights and obligations in the GBV?

• The GBV regulates, among other things, voting rights, dividend distributions, and co-sale and preemption rights provisions.

• Can a shareholder agreement be changed?

• Yes, changes are possible but require the consent of all involved shareholders.

• How does the GBV relate to the LLC's statutes?

• The GBV supplements the statutes with detailed regulations that cover the specific interests of the shareholders.

Clarifying such questions is crucial to avoid misunderstandings and conflicts. Jurata offers comprehensive support in the creation and adjustment of shareholder agreements while considering all legal frameworks.