New Danish Company Act on Shareholders' Agreements: A critical evaluation

Section 82 of the Danish Company Act, in force from 1 March 2010, provides that ‘Shareholders’ agreements are neither binding on the company nor on decisions taken by the general assembly’. This has far-reaching consequences for shareholders’ agreements, also for already existing agreements. The substantial elements in many agreements are clauses on (1) voting for board candidates, (2) voting for dividends of certain proportions, and (3) first refusal rights, respectively, call options for shares in the company. Such clauses are at the very roots of corporate law, dealing with the shareholders’ (1) organizational rights, (2) financial rights, and (3) rights of disposal, or in plainer words, the corporate (1) power, (2) money, and (3) exit. If a shareholders’ agreement is thoroughly kept and respected by all parties, both in the way they vote at general assemblies and in the way they act when wishing to sell or otherwise dispose of
their shares, no problems arise concerning section 82. But if a party, for some reason (which may of course appear in a disguise, where the party, for example, invokes rebus sic stantibus, or other kinds of conditions subsequent), decides to (1) vote differently and/or (2) dispose of his shares in a different way than what is agreed upon, section 82 will show its ugly face, and contractual law and corporate law must in such cases be regarded as two different worlds. The remedies against this are partly of a contractual nature (penalty, mutual pledge in shares, injunction, and so forth) and
partly of a corporate nature (repetition in or removal to the articles of association). The contractual category can be described as an indirect method, whereas the corporate category can be described as a direct method. The overall conclusion is that the direct method is often preferable. Finally, the articles discusses to what extent the repetition in or even the removal of the obligations to the articles of association is a voluntary option for the parties to the contract or whether a party that refuses to cooperate to such repetition or removal can be ordered to vote for such amendment to the articles of association by a court or an arbitral tribunal. The answer to this question
must in some, but not in all, circumstances be affirmative.