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The agreement that binds everyone except the company

Published 8 June 2026 · 5 min read · By GD · LexCodex

Three founders sign a shareholders' agreement while everything is still fun. One clause is crystal clear: no one sells their shares to an outsider without first offering them to the others. Two years later, one of them does exactly that — sells to an external investor none of the others want in. The remaining two reach for the agreement, point to the clause and prepare to stop the buyer at the door of the next general meeting.

The buyer walks in anyway. The clause was binding — but not on the company, and not on the buyer.

This is the most common and most expensive misunderstanding about shareholders' agreements: the belief that the agreement governs the company. It does not. A company runs on two entirely different sets of rules, and they live in separate legal spheres.

The articles of association are the company's own rulebook. In Sweden they are registered with the companies registry (Bolagsverket), public, and contain what the Companies Act requires — name, registered seat, object of the business, share capital, number of shares, the size of the board, and so on. They bind the company as a legal person, its organs, and every shareholder, including the one who buys in tomorrow.

The shareholders' agreement (aktieägaravtal in Sweden, ejeraftale in Denmark, aksjonæravtale in Norway) is something else entirely: a contract between the owners, alongside the company. It binds only those who signed it. The company is, as a rule, not a party, and so cannot be bound. This follows from what Swedish lawyers call the separation principle — contract law and company law are kept apart. The consequence is sharp: a general-meeting resolution passed correctly under the statute and the articles is valid even if it breaches every word of the shareholders' agreement. The Swedish Supreme Court tested exactly that line in NJA 2011 s. 429, where two owners had waived a statutory redemption right in their shareholders' agreement — and one of them used it anyway. The agreement did not stop him; at most it gave the others a claim in damages for the breach.

The clause in the wrong document

This is where transfer restrictions tend to end up misplaced. A restriction on the right to transfer shares — a right of first refusal, a pre-emption right, a consent requirement — bites against the outside world only if it sits in the articles. Then it is registered, then it holds against the buyer, then a transfer made in breach of it can be challenged. Put the same restriction in the shareholders' agreement instead and you have a promise between the parties, but nothing that prevents an outside buyer from being entered in the share register. Many agreements make precisely that mistake: they place the clause that must live in the articles into the document where it looks every bit as authoritative but has no teeth.

The same line across the Nordics — drawn differently

The distinction is the same throughout the Nordics, though the drafting technique differs. In Denmark it is explicit: section 82 of the Companies Act (selskabsloven) states that a shareholders' agreement is not binding on the company or on the decisions taken at the general meeting — full stop. The chair of the meeting is not even to glance at the agreement. In Sweden no such sentence appears in the statute; the same result rests instead on principle and case law. Norway lands in the same place: an aksjonæravtale binds those who entered into it, not the company. The technique varies — the outcome does not.

What belongs where

The articles are blunt but they carry: put there what must hold against the company and against future owners — transfer restrictions you want to invoke against a buyer, and anything that must survive a change of ownership. The shareholders' agreement is sharp but private: put there the fine-grained and the sensitive — voting commitments, board nomination, exit, drag-along and tag-along, non-compete, the things you would rather a competitor not read in a public register. Much of that cannot be placed in the articles at all; company law is surprisingly narrow about what may go there.

And because the agreement gives a claim only against the counterparty, never against the company, its real strength lies in its remedies. A shareholders' agreement without a well-considered liquidated-damages clause is about as much of a deterrent as a parking sign without a fine. Anyone breaking it will weigh what it costs — so make sure it costs.

For the three founders, the matter was settled long before the dispute began. Had the restriction sat in the articles, the buyer would never have got in. Instead they got precisely what they had bargained for: the right to sue an old partner for money, while the investor they never wanted sits on at the table.