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From the magazine SZW-RSDA 4/2017 | S. 442-451 The following page is 442

Les avantages (statutaires) particuliers de l’art. 628 al. 3 CO : ­une alternative méconnue aux conventions d’actionnaires1

Swiss Company Law provides for a «one size fits all» form of limited by shares companies. The underlying idea is that the articles of association can be customized in order to fit the needs of each particular case. On the other hand however flexibility is limited, in particular due to the fact that besides payment of an emission price for their shares, the articles of association cannot put any obligation on the shareholders, and can only grant them a limited number of privileges. As a result, shareholders’ agreements are widely used, ­although their limits are well-known given that they are binding only upon the parties thereto and are therefore a res inter alios with regard to the company and to any non-­signatory shareholder. Practitioners often ignore that article 628 paragraph 3 CO allows to insert, in the ­articles of association, a relatively broad spectrum of tailor-made rights in favor of elected shareholders and even of third parties. The main advantage of this…

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