Ejeraftaler og vedtægter

Shareholders' agreements and articles of association

Jeppesen, Tobias Priess

4. semester

Jura, Kandidat

2026

2026-03-08

66

This master’s thesis examines the relationship between shareholders’ agreements and articles of association. The thesis further examines the considerations that apply to shareholders’ agreements involving employee shareholders. The thesis concludes that shareholders’ agreements concern organizational, financial and dispositional rights related to the ownership of the company, and their purpose is often to modify the majority principle under the Danish Companies Act. They are entered into under general contract law principles and rules and may be declared invalid on the same basis. Furthermore, the thesis finds that the articles of association function as the company’s constitution, and that minimum requirements apply to their content. Likewise, registration presupposes that the matter in question is relevant to the articles of association. The articles of association may also be declared invalid for three different reasons. Moreover, the thesis concludes that there exists a hierarchy within Danish company law in which the Danish Companies Act ranks highest, followed by the articles of association, and thereafter the shareholders’ agreement. According to section 82 of the Danish Companies Act, shareholders’ agreements cannot bind the company nor affect the validity of decisions made by the general assembly. Correspondingly, the management of the company is required to act solely in the interest of the company and is not bound by a shareholders’ agreement as a matter of company law. The thesis finds that it cannot be determined whether it is preferable to regulate a matter in the articles of association or in a shareholders’ agreement, as this ultimately depends on a concrete assessment of the intended purpose and the respective advantages and disadvantages associated with a regulation in the articles of association versus in a shareholders’ agreement. If the matter is to be incorporated into the articles of association, this must be done on the premises of company law, including in compliance with the principle of equality in section 45 of the Danish Companies Act. This can be achieved by establishing share classes with different rights or by creating individual rights. If the matter is not incorporated into the articles of association, it must be considered how compliance with the shareholders’ agreement can otherwise be ensured. The thesis finds that this is most effectively achieved through agreed remedies for breach, such as liquidated damages or a purchase right that is triggered by breach of contract. Rights of first refusal and purchase rights may be regulated either in the articles of association or in a shareholders’ agreement, but if they are regulated in a shareholders’ agreement, they are not binding on the company due to section 82 of the Danish Companies Act. Sale obligations in shareholders’ agreements involving employee owners may be governed by the rules of The Danish Salaried Employees Act, The Danish Contracts Act, and The Danish Share Option Act. If the arrangement is governed by the Danish Share Option Act the buyback must take place at market value as required by section 4 of the Danish Share Option Act. If the sale obligation is not governed by the Danish Share Option Act, the parties are in principle free to agree on terms of their choosing. However, the sale obligation may be declared invalid under section 36 of the Danish Contracts Act on the grounds of unfairness. In the assessment of fairness, factors such as the reason for the termination of the employment relationship, whether the sale takes place at market value, and the employee’s legitimate expectations are considered. Finally, the arrangement is governed by section 17(a) of the Danish Salaried Employees Act if it contains an element of favour or compensation. In such case, the employee is entitled to a proportional share of the benefit.

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