Parties and legal nature
The shareholders’ agreement is an agreement among shareholders of a company. Why is it needed? The statutes cannot oblige a shareholder to do more than pay the issue price of his or her shares (CO 680). Whoever wants more – voting commitments, rights to buy shares – needs a contract. Shareholders’ agreements are also regularly concluded among only some of the shareholders. Shareholders who are not party to the shareholders’ agreement are not bound by it. The company itself is never a party to a shareholders’ agreement. Legally, the shareholders’ agreement is a contract, not part of the statutes (it can be a simple partnership, see Chapter 06.03): it binds only its parties and, unlike the statutes (CO 936), it is not public.
Typical contents
Shareholders’ agreements can deal with very different issues. Shareholders’ agreements regularly deal with how a company should be managed, who takes over which functions in the company. They may also deal with restrictions on the transferability of shares, i.e. the restriction on the acquisition of shares by the parties to the shareholders’ agreement. The reason for this may be that shareholders require certain characteristics from third parties who wish to acquire shares. Existing shareholders may retain a right of first option for the shares, possibly even for a price already determined or determinable in advance. Two further clauses are standard in international practice: the tag-along (co-sale right), i.e. the right to sell one’s shares together with a selling shareholder, and the drag-along (co-sale obligation), i.e. the obligation to sell one’s shares together with a selling shareholder. A freely available benchmark is the annotated model shareholders’ agreement of the Swiss Private Equity & Corporate Finance Association (SECA).
A shareholders’ agreement must not bind its parties excessively (CC 27): a party that is bound excessively may refuse to perform the agreement (BGE 143 III 480). Shareholders’ agreements therefore regularly contain a clause on their term.
Example: Roche
One of the best known and most important shareholders’ agreements in Switzerland is that of the families participating in the Swiss pharmaceutical giant Roche Holding Ltd.. Most of Roche’s capital consists of non-voting participation certificates; only the bearer shares carry votes. The founding families Hoffmann, Oeri and Duschmalé hold 64.97 % of these bearer shares (31 December 2025) – and thus about two thirds of the votes – although this is less than a tenth of the total capital. However, the families have the majority of votes only on condition that all shareholders of the family vote equally. For this reason, the families have agreed to pool their votes. As this is of great importance for the publicly traded company, the pool and its size are published every year in Roche’s Finance Report (Finance Report 2025, Note 22 «Equity attributable to Roche shareholders», «Share capital», p. 106). The pool has existed since 1948; in 2009 it was extended for an indefinite period.