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From the magazine SZW-RSDA 6/2018 | S. 696-707 The following page is 696

Validité et efficacité de la clause shotgun en droit suisse

A shotgun clause establishes a mechanism intended to resolve deadlocks in companies with two shareholders with equal stakes. It enables one of the two shareholders to trigger a procedure which will ultimately result in the purchase of all the shares at a fair price. The offeror initiates the procedure by proposing a certain price for the shares. The offeree then decides whether to sell its shares for that price or to buy the shares from the offeror at the same price. This paper purports to analyse the validity of shotgun clauses under Swiss law, in light of French, German and Austrian case law. We conclude that they are valid, provided that the parties exercise their rights in good faith. However, shotgun clauses should be avoided where there are asymmetries between the shareholders as such financial, informational or even technical imbalances could favour one of the parties at the point in time of exercising the rights under the clause. As their implementation can be delicate, this…

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