Les clauses statutaires relatives au transfert des actions de la société anonyme

This article deals with the admissibility of statutory acquisition clauses with regard to the right of the free transmissibility of shares (Art. 685 ss of the Swiss Code of Obligations, CO) and the prohibition of additional obligations at shareholders’s cost (Art. 680 CO). In order to resolve this issue, a distinction must be made between statutory acquisition clauses relating to the shares of the seller and those relating to the shares taken over by the company within the framework of the exercise of the escape clause (Art. 685b para. 1 in fine CO). In fact, the former makes the conditions and approval process more complicated, which is expressly prohibited by Art. 685b para. 7 CO, impose an additional obligation on the shareholder which is prohibited (Art. 680 para. 1 CO) and concern relationships between shareholders, whereas the articles of association only govern the vertical relations between the shareholders and the company. They should therefore be considered incompatible…