Shareholder Agreement Template Switzerland

Shareholder Agreement Template Switzerland

1. Document Preamble & Recitals

This Shareholder Agreement (the "Agreement") is entered into and made effective as of [Effective Date] (the "Effective Date"), by and among:

1. [Company Name], a corporation (Aktiengesellschaft / AG or Gesellschaft mit beschränkter Haftung / GmbH) incorporated and existing under the laws of Switzerland, having its registered office at [Company Registered Address], and registered with the commercial register of the Canton of [Canton Name], Switzerland, under enterprise identification number (UID) [UID Number] (hereinafter referred to as the "Company"); and
2. [Shareholder 1 Legal Name], residing at [Shareholder 1 Address] (hereinafter referred to as "Shareholder 1"); and
3. [Shareholder 2 Legal Name], residing at [Shareholder 2 Address] (hereinafter referred to as "Shareholder 2").

(Shareholder 1 and Shareholder 2 are hereinafter collectively referred to as the "Shareholders" and individually as a "Shareholder").

Recitals

WHEREAS, the Company has a registered share capital of [Total Share Capital Amount] divided into [Number of Shares] registered shares with a nominal value of [Nominal Value per Share] per share (the "Shares");

WHEREAS, the Shareholders are the legal and beneficial owners of the Shares of the Company in the respective quantities set forth in Schedule A attached hereto; and

WHEREAS, the parties desire to set forth their mutual rights, obligations, and understandings regarding the governance of the Company, the management of its operations, the transferability of its Shares, and the overall relationship among the Shareholders under the legal framework of the Swiss Code of Obligations (Schweizerisches Obligationenrecht, "CO").

NOW, THEREFORE, in consideration of the mutual covenants, promises, and recitals contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

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2. Operational Definitions

For the purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following terms shall have the meanings assigned to them below:

1. "Affiliate" means, with respect to any specified party, any person, corporation, partnership, or other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such specified party.
2. "Articles of Association" means the articles of incorporation (Statuten) of the Company, as amended from time to time in accordance with Swiss law and this Agreement.
3. "Board" means the Board of Directors (Verwaltungsrat) of the Company.
4. "Business Day" means a day other than a Saturday, Sunday, or public holiday recognized in the Canton of [Canton Name], Switzerland.
5. "CO" means the Swiss Code of Obligations of March 30, 1911, as amended (Schweizerisches Obligationenrecht).
6. "Control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
7. "Fair Market Value" means the cash price that a willing, informed buyer would pay to a willing, informed seller in an arm's-length transaction, as determined in good faith by the Board or an independent certified auditor mutually agreed upon by the disputing parties.
8. "Lock-up Period" means the period commencing on the Effective Date and ending on [Date or Milestone], during which no Shareholder may Transfer any Shares except as explicitly permitted under this Agreement.
9. "Notice" means any formal written communication delivered pursuant to Section 5.3 of this Agreement.
10. "Shares" means all shares of stock of the Company of any class or series, now owned or hereafter acquired by the Shareholders, including any voting rights attached thereto.
11. "Tag-Along Right" means the right of a minority shareholder to participate in a proposed sale of Shares by a majority shareholder to a third party upon the same terms and conditions.
12. "Transfer" means any sale, assignment, pledge, hypothecation, gift, encumbrance, bequest, or other disposition or transfer of any Shares, or any legal or beneficial interest therein, whether voluntarily, involuntarily, by operation of law, or otherwise.

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3. Substantive Terms & Obligations

3.1 Corporate Governance and Board Representation

1. The Board shall consist of [Number] members. Each Shareholder shall vote all of their respective Shares at every annual or extraordinary general meeting of shareholders to ensure the election of the designees nominated as follows:
   • Shareholder 1 shall be entitled to nominate [Number] Director(s).
   • Shareholder 2 shall be entitled to nominate [Number] Director(s).
2. Quorum and voting requirements for Board resolutions and General Meetings of Shareholders shall be governed by the mandatory provisions of the CO and the Articles of Association, provided that reserved matters under Section 3.2 require the affirmative vote specified therein.

3.2 Reserved Matters

Notwithstanding any provision of Swiss law or the Articles of Association to the contrary, the Company shall not take, and the Board and Shareholders shall not permit the Company to take, any of the following actions without the prior unanimous written consent of all Shareholders:

1. Any amendment to the Articles of Association or change in the capital structure of the Company (including any increase or decrease of share capital, issuance of participation certificates (Partizipscheine), or profit-sharing certificates (Genussscheine)).
2. The merger, division, transformation (Umwandlung), or liquidation of the Company, or the sale of all or substantially all of the Company's assets.
3. The approval of the annual budget and business plan.
4. The incurrence of any indebtedness, borrowing, or guarantee exceeding [Dollar Amount / CHF Amount] outside the ordinary course of business.
5. The entry into, modification, or termination of any related-party transaction between the Company and any Shareholder or its Affiliates.

3.3 Transfer Restrictions and Right of First Refusal (ROFR)

1. Lock-up: Except with the prior written consent of all Shareholders, no Shareholder shall Transfer any Shares during the Lock-up Period.
2. Right of First Refusal: If any Shareholder (the "Transferring Shareholder") receives a bona fide, third-party offer to purchase all or any portion of its Shares (the "Offered Shares") which it intends to accept, the Transferring Shareholder shall promptly give written Notice to the Company and the non-transferring Shareholders (the "ROFR Notice"), setting forth the identity of the prospective transferee, the purchase price, payment terms, and all other material conditions.
3. The non-transferring Shareholders shall have an option, exercisable within thirty (30) calendar days following the receipt of the ROFR Notice, to purchase all (but not less than all) of the Offered Shares at the same price and on the same terms and conditions set forth in the ROFR Notice.

3.4 Tag-Along and Drag-Along Rights

1. Tag-Along Right: If the non-transferring Shareholders do not exercise their ROFR regarding the entirety of the Offered Shares, and the Transferring Shareholder intends to transfer its Shares to a third party, the non-transferring Shareholders shall have the right to require the third-party purchaser to purchase their pro rata share of Shares on the exact same terms and conditions.
2. Drag-Along Right: If Shareholders holding at least [Percentage, e.g., 75%] of the voting rights (the "Dragging Shareholders") approve a bona fide sale of all the issued and outstanding Shares of the Company to an independent third-party purchaser, the Dragging Shareholders may compel all other Shareholders (the "Dragged Shareholders") to sell all of their Shares to such third party on the same terms and conditions.

3.5 Representations and Warranties

Each Shareholder severally represents and warrants to the other Shareholders and the Company that:

1. Such Shareholder has full legal capacity, power, and authority to execute, deliver, and perform its obligations under this Agreement.
2. The execution and delivery of this Agreement and the performance of its obligations hereunder do not and will not violate any provision of applicable Swiss law, its organizational documents, or any material agreement to which it is a party.
3. Its Shares are owned free and clear of any liens, encumbrances, pledges, security interests, or third-party rights of any kind whatsoever.

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4. Default, Termination, and Remedies

4.1 Classification of Breach

A breach of this Agreement shall be classified as a material default ("Material Default") if it involves:

1. Any unauthorized Transfer of Shares in violation of Section 3.3 or Section 3.4.
2. The willful violation of the reserved matters provisions set forth in Section 3.2.
3. The material misrepresentation or breach of any representation or warranty set forth in Section 3.5.
4. The filing of a petition for bankruptcy, insolvency, or debt restructuring (Nachlassverfahren) by any Shareholder.

4.2 Notice and Cure Period

In the event of a Material Default, the non-defaulting party or parties shall provide written Notice of default to the defaulting Shareholder. The defaulting Shareholder shall have thirty (30) business days from the formal receipt of such Notice to cure the specified default, provided that the nature of the breach is capable of being cured.

4.3 Remedies Upon Default

If a Material Default is not cured within the thirty (30) business day cure period, the non-defaulting Shareholders, acting jointly or severally, shall be entitled to exercise any or all of the following remedies, without prejudice to any other rights available at law or in equity:

1. Compulsory Transfer ("Bad Leaver"): The non-defaulting Shareholders may require the defaulting Shareholder to sell all of its Shares to the non-defaulting Shareholders at a purchase price equal to seventy-five percent (75%) of the Fair Market Value or the nominal value of the Shares, whichever is lower.
2. Injunctive Relief: The right to seek immediate injunctive relief and specific performance from the competent courts of Switzerland to prevent ongoing violations or enforce compliance with this Agreement.
3. Damages: The right to recover all direct damages, losses, costs, and reasonable legal fees incurred as a result of the breach.

4.4 Termination

This Agreement shall automatically terminate upon the earliest of:

1. The formal winding up, liquidation, or dissolution of the Company.
2. The closing of an initial public offering (IPO) of the Company's shares on a recognized stock exchange.
3. The written agreement of all Shareholders to terminate this Agreement.

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5. Boilerplate Legal Provisions

5.1 Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable by any court or competent authority under Swiss law, such provision shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the affected provision shall be deemed deleted. The invalidity, illegality, or unenforceability of any provision shall not affect the validity, legality, or enforceability of the remaining provisions of this Agreement.

5.2 Entire Agreement

This Agreement, together with the Schedules attached hereto and the Articles of Association, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings, and agreements, whether oral or written, between the parties relating thereto.

5.3 Notices

All notices, demands, or other communications required or permitted under this Agreement must be in writing and shall be deemed effectively given: (a) upon personal delivery; (b) upon confirmation of receipt when sent by certified or registered mail, postage prepaid; or (c) upon transmission when sent by electronic mail with confirmed delivery receipt, addressed to the respective parties at the addresses stated in the preamble (or to such other address as a party may designate by notice).

5.4 Force Majeure

No party shall be liable or responsible to the other parties for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot, national strikes, or pandemic, provided that the affected party gives prompt written notice to the other parties and uses commercially reasonable efforts to resume performance as soon as practicable.

5.5 Governing Law

This Agreement, and all claims or causes of action (whether in contract, tort, or statute) that may be based upon, arise out of, or relate to this Agreement, shall be governed by, and enforced in accordance with, the substantive laws of Switzerland, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

5.6 Dispute Resolution and Jurisdiction

1. Any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including its conclusion, binding effect, amendment, breach, termination, or validity, shall be submitted exclusively to the ordinary courts of the Canton in which the Company has its registered office, with the Commercial Court (Handelsgericht) of the Canton of [Canton Name] having exclusive jurisdiction, to the extent permitted by law.
2. Alternatively, by unanimous written agreement of the parties involved in a specific dispute, the matter may be referred to and finally resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted. The seat of arbitration shall be [City, e.g., Zurich], Switzerland, and the proceedings shall be conducted in the English language.

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6. Formal Execution Block

IN WITNESS WHEREOF, the parties hereto have executed this Shareholder Agreement Template Switzerland by their duly authorized representatives as of the Effective Date first written above.

The Company:

[Company Name]

By: [Signature]
Name: [Signatory Name]
Title: [Signatory Title, e.g., Managing Director / CEO]
Date: [Date]

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Shareholder 1:

[Shareholder 1 Legal Name]

Signature: [Signature]
Name: [Shareholder 1 Legal Name]
Title: [Title / Shareholder]
Date: [Date]

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Shareholder 2:

[Shareholder 2 Legal Name]

Signature: [Signature]
Name: [Shareholder 2 Legal Name]
Title: [Title / Shareholder]
Date: [Date]