What belongs in a shareholders' agreement, and what belongs in the articles

Every Swiss company with more than one shareholder runs on two rulebooks. The articles of association are the public one: filed with the commercial register, visible to anyone, binding on the company itself, and confined to what Art. 626 CO and the rest of company law allow them to contain. The shareholders' agreement is the private one: a contract among the shareholders that the public never sees.

Founders often treat the split as a formality: the notary drafts the articles, the lawyers draft the SHA, done. But the allocation of a rule to one document or the other changes what the rule can do, who it binds and what happens when someone breaks it. Getting the split right is not cosmetic.

The difference shows up in the remedies. A rule in the articles binds the company, so a resolution taken against it can be challenged (Art. 706 CO), and a transfer restriction anchored there lets the company actually refuse a buyer (Art. 685b CO). A rule in the shareholders' agreement binds only its parties: breach it and you have a damages or penalty claim, not an invalid share transfer. That is the whole trade.

Two documents, two legal natures

The articles of association are corporate law. They constitute the company, and their rules operate at the level of the company itself: they bind every shareholder, present and future, automatically: nobody has to sign anything to be subject to them, and nobody can opt out by refusing to sign. Corporate bodies must respect them, and acts that violate them can be challenged as defective corporate acts.

The shareholders' agreement is contract law. It binds exactly the people who signed it, and nobody else. A new shareholder is not bound until they accede to it. The company itself is typically not a party, and the agreement cannot override mandatory corporate law. In exchange for these limits, the SHA offers what the articles cannot: privacy, flexibility and the full toolbox of contractual drafting.

What belongs in the articles

Into the articles go the rules that must have corporate effect, rules that need to bind everyone automatically and shape what the company itself can validly do:

• the capital structure: share classes, nominal values, and any preferences that must operate at the corporate level;
• transfer restrictions on registered shares (Vinkulierung), which let the company refuse certain transfers: a control that only works if it is anchored in the articles;
• capital instruments such as conditional or authorized capital, which enable option plans and flexible fundraising;
• the corporate organs and their powers, where they deviate from the statutory default: qualified majorities, meeting rules, board organization.

The common trait: these rules must hold against everyone, including a future shareholder who never signed anything, and against the company's own organs.

What belongs in the shareholders' agreement

Into the SHA go the arrangements that are commercial, sensitive or simply none of the public's business:

• vesting and leaver provisions among founders;
• drag-along and tag-along rights, rights of first refusal and other exit mechanics in their full commercial detail;
• board composition arrangements (who may nominate whom) and voting undertakings;
• information rights for investors beyond the statutory minimum;
• non-compete and non-solicitation undertakings, confidentiality, and dispute mechanics such as deadlock resolution.

Some of these could not go into the articles at all; others could, but should not, because the articles are public, and your leaver mechanics, investor protections and internal power balance do not belong in a register anyone can consult.

The enforceability difference, and why it matters

Here is the practical consequence of the split. If a transfer violates a restriction in the articles, the corporate machinery itself can stop it: the company can refuse to recognize the acquirer. If a shareholder violates the SHA (sells despite a right of first refusal, votes against a voting undertaking) the transfer or the vote is generally still effective at the corporate level. The other shareholders are left with contractual remedies: damages, which are hard to quantify, or a contractual penalty, if one was drafted.

This is why well-drafted SHAs lean on structural enforcement rather than trust: penalty clauses with real numbers agreed by the parties, purchase rights that trigger on breach, escrow arrangements, and, wherever possible, an anchor in the articles that makes the corporate reality match the contractual promise. The two documents are not alternatives; they are designed to interlock.

Keep the two consistent, and review them together

The most common defect we see is not a missing clause but a contradiction: articles amended at a financing round while the SHA still reflects the old world, or an SHA renegotiated without checking what the articles actually permit. Each document is then internally coherent, and the system is broken. Reading the two against each other (every transfer rule, every majority, every board provision) is exactly the kind of systematic cross-check that benefits from software-assisted review, with a lawyer resolving what each mismatch means.

Which clause belongs where in your specific setup depends on your shareholder base, your financing plans and your appetite for publicity, if you would like a second pair of eyes on your articles and SHA as a system, we are happy to take a look.