What is a shareholder agreement?
A shareholder agreement (GBV) is a central document when founding a LLC in Switzerland. It regulates the rights and obligations of the shareholders among themselves and complements the corporate law provisions laid down in the Code of Obligations.
This contract is of fundamental importance because it creates the basis for smooth cooperation between the shareholders and minimizes potential conflicts in advance. The GBV goes beyond the minimum statutory requirements and enables shareholders to record their specific needs and ideas in a contract. It provides a legal framework for important aspects such as profit distribution, management, voting rights, and the handling of company shares. The GBV is also particularly valuable when regulating succession scenarios or when shareholders join or leave. Thanks to its flexible design, it can be adapted to changing business conditions and corporate structures.
Key features of the GBV:
Private law agreement: The GBV is a confidential document between the shareholders
Flexibilität: Can be adapted at any time if all shareholders agree
Complementary function: Extends statutory and articles-of-association regulations to include individual agreements
Main purpose and significance:
The GBV primarily serves:
Conflict prevention through clear regulations
Securing business continuity
Protection of shareholders' interests
Freedom of contract allows shareholders to shape their relationships largely according to their own ideas, as long as the regulations do not violate mandatory law. Anyone who needs legal assistance with drafting can have an individual shareholder agreement created with Jurata. An experienced corporate lawyer clarifies the specific situation and the goals of the shareholders in a personal conversation and, based on this, drafts a contract tailored to the company. The shareholders can then provide feedback before the contract is finalized. In this way, central rights, obligations, and decision-making processes can be regulated in a legally secure manner and tailored to the individual needs of those involved.
The role of the shareholder agreement in founding a LLC
The shareholder agreement is central to founding a LLC, especially for start-ups and SMEs. It establishes clear rules and structures to avoid conflicts and ensure harmonious cooperation.
For start-ups and SMEs, the shareholder agreement offers numerous advantages:
Legal clarity: Precise definitions in the contract reduce uncertainties and the legal situation is clearly defined.
Flexibilität: 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 regulations on voting rights, profit distribution, and share transfers.
Facilitated decision-making: Clear decision-making processes promote efficient procedures and prevent deadlocks.
These aspects make the shareholder agreement an indispensable instrument for a successful company formation 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 of relevance:
Non-compete clause
The non-compete clause prohibits shareholders from entering into direct competition with the company during their membership and for a certain period after leaving. This clause protects the company from losing knowledge and know-how that the shareholder acquires during their activity.
Voting rights regulations
Here, the voting rights of the shareholders are clearly defined. Often, a certain minimum quorum is specified for important decisions, so that a unified opinion among the shareholders is necessary to pass certain resolutions of great importance.
Profit distribution
This clause determines how profits are distributed within the LLC. It can provide for both a pro-rata distribution according to shares and other distribution arrangements.
Exclusion clause
This regulation makes it possible to exclude a shareholder from the LLC under certain conditions. This ensures that only active and committed shareholders remain part of the company.
Succession plan
This regulates how the shares of a deceased or leaving shareholder are handled. This clause ensures that the shares do not fall into undesirable hands.
Right of first refusal
The right of first refusal is an essential protective clause in the shareholder agreement. It gives a shareholder the right to acquire the shares of another shareholder 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 right of first refusal strengthens trust among shareholders and promotes harmonious cooperation.
Right of co-sale
This clause enables shareholders to sell their shares together with another shareholder. This promotes uniformity and stability within the LLC.
Practical example: IT-Solutions LLC
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 defined the following specific regulations:
Right of first refusal: When Christian Weber wanted to sell his shares to a competitor after five years, the agreed right of first refusal came into play. Anna Meyer and Bernd Schmidt were able to acquire the shares on the same terms that the competitor had offered.
Succession plan: After the unexpected death of Bernd Schmidt, the forward-looking succession plan in the GBV specified that his shares would not pass to his heirs, but could be taken over by the remaining shareholders.
Profit distribution: Despite different shareholding ratios, a performance-related profit distribution was agreed in the GBV, which is based on the individual contribution to the company's success. This motivates all shareholders to take an active role.
This example shows how the GBV ensures stability and ability to act of a company in practice.
Creating a shareholder agreement: Steps and legal advice
The creation of a shareholder agreement (GBV) requires a precise approach 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 statutory requirements are met.
Drafting the contract: Preparation of a detailed draft that takes all important clauses into consideration.
Negotiations: Discussion and adaptation of the draft among shareholders.
Written record: Necessity of a written document to clearly define rights and obligations.
The importance of a written record cannot be stressed enough. It ensures legal certainty and serves as a binding verification document for all parties.
Frequently asked questions about the shareholder agreement
In connection with the shareholder agreement (GBV), questions frequently arise regarding rights and obligations. Here are some of the most common questions, which provide clarity:
What are the main rights and obligations in the GBV?
The GBV regulates, among other things, voting rights, dividend distributions, as well as rules regarding co-sale rights and rights of first refusal.
Can a shareholder agreement be amended?
Yes, amendments are possible, but require the consent of all participating shareholders.
How does the GBV relate to the articles of association of a LLC?
The GBV complements the articles of association with detailed regulations that cover specific interests of the shareholders.
Clarifying such questions is crucial to avoiding misunderstandings and conflicts. Jurata offers comprehensive support in the creation and adaptation of shareholder agreements, taking all legal frameworks into account.
