Private Equity Minority Investments - Universität St.Gallen

Chapter VI: Exitshares according to terms specified in the agreement. If the parties cannotreach agreement, the seller is typically allowed to negotiate with or sell to athird party. In case of a right of first refusal, the party who receives an offerby a third party to buy his/her shares at a certain price is obliged to firstoffer the non-transferring shareholders the opportunity to purchase theshares at the same price and on the same terms and conditions. Only if thenon-transferring shareholders decline is the obliged shareholder allowedselling to an outsider. In the right of first offer, the entitled shareholder mustmake the purchase offer, which could be misused by the willing seller toobtain a more favorable third-party offer. 2314 On the other hand, a drawbackof the right of first refusal is that it requires the willing seller to obtain athird-party offer, the preparation of which takes time and energy and hence,may discourage third-party purchasers from making an initial bid for sharessubject to preemptive rights. 2315Share transfer restrictions may be implemented both at the corporate andthe contractual levels (i.e., they may be stipulated in both the articles ofassociation and/or shareholders’ agreements). 2316 In case of registeredshares of companies not listed on a stock exchange, Swiss corporate lawallows the stipulation of restrictions on the transferability of shares in thearticles of association that require the company’s consent. The consent maybe refused for valid reasons expressly listed in the articles of association.Valid reasons include provisions regarding the composition of theshareholder circle, which justify the refusal in view of the corporatepurpose or economic independence. 2317 Alternatively, the company mayoffer, without stating its reasons, the willing seller to take over the sharesfor its account, the account of other shareholders, or the account of thirdparties at the real value at the time of the request (escape clause). 2318Beyond these restrictions, the prerequisites for the transferability of sharesmust not be made more difficult via the articles of association. 2319 Forexample, it would be unlawful to make the company’s consent to transfershares subject to a requirement that the third party purchaser joins anexisting shareholders’ agreement. 2320 Legal scholars debate whether rightsof first offer and of first refusal can be incorporated in the articles of2314231523162317231823192320See TREZZINI, p. 226 et seq.Cf. VON SALIS-LÜTOLF, Finanzierungsverträge, § 9, N 1053.For statutory rules on the transferability of shares, see CO 685 et seqq. See FORSTMOSER/MEIER-HAYOZ/NOBEL, § 44, N 261 et seqq.CO 685b II.CO 685b I. See BÖCKLI, Aktienrecht, § 6, N 195.CO 685b VII.See BÖCKLI, Aktienrecht, § 6, N 299; ÖRTLE/DU PASQUIER, Basler Kommentar, CO 685b, N20; TREZZINI, p. 220. In contrast, KURRER, Basler Kommentar, CO 680, N 13.373