A shareholders' agreement (ejeraftale) is not a formality. It is the document that governs the owners' relationship with one another — what happens when they disagree, when an owner wants out, when an owner dies, and when an external buyer appears. Yet in our experience the majority of the agreements we see in connection with disputes and transactions lack precisely the clauses that would have prevented the conflict or made the process straightforward.
It is rarely down to bad faith. It is because the agreement is typically negotiated at the start-up stage, when everyone is aligned, optimistic and full of mutual trust. The hard clauses — what happens if we disagree? what is my share actually worth? who decides what? — get postponed. The result is an agreement that holds up in a tailwind but breaks apart in a headwind.
What the law says — and what it doesn't
Selskabsloven (the Danish Companies Act) leaves considerable freedom of contract, but draws clear lines between what binds the owners among themselves and what is effective against the company and third parties acting in good faith. A shareholders' agreement does not bind the company or general-meeting resolutions; it operates only between the parties unless its content is also anchored in the articles of association (Selskabsloven § 82). The courts confirm this: a shareholders' agreement does not by its mere existence create obligations for the company or third parties (SHR, 20.8.2025, BS-63793/2023-SHR).
Transfer restrictions — rights of first refusal, consent requirements and redemption rights — must be entered in the articles of association to take effect against third parties. Otherwise they are usually only an internal matter. The default rules of the statute are deliberately minimal: there is no detailed statutory regulation of deadlock or leaver provisions. These must be negotiated, and if external effect is desired, they must be mirrored in the articles.
The shareholders' agreement that never got finished, or that was copied from a template, is not neutral. It leaves decisive questions to a court's discretion at a point when the parties no longer wish each other well — and where the articles of association are often the only document with external legal effect.
The clauses most often missing
Exit mechanisms: right of first refusal, drag-along and tag-along
A right of first refusal prevents a sale to an outsider without first offering the same terms to the other owners. To have effect against third parties, the right of first refusal must be set out in the articles. A consent requirement likewise has external effect only if it appears in the articles — and failure to respond within four weeks may be deemed implied consent.
Drag-along and tag-along are not regulated by statute. They should be agreed clearly in the shareholders' agreement and, where they affect transferability, mirrored in the articles. A drag-along clause gives owners with a sufficient share of votes the right to force the others into a joint sale. Tag-along conversely gives the minority the right to be included. Without these clauses a transaction can hang in uncertainty for months.
Deadlock — what happens when the owners are fundamentally at odds?
In a company with two owners holding 50/50, every decision requiring a simple majority is effectively a veto vote. A deadlock mechanism governs what happens when the parties are locked. The best known is the "Russian roulette" or "Texas shoot-out": one party offers to buy the other's share at a stated price, and the other can accept — or flip the offer and buy at that same price.
Deadlock clauses bind the parties among themselves but do not bind the company or the general meeting without anchoring in the articles. The courts have access to compulsory redemption in cases of abuse (Selskabsloven), but that is a narrow exception, not a standard remedy for locked ownership.
Death, disability and divorce
Without clear rules, heirs or a spouse can enter the ownership circle — typically without any business connection to the company. To avoid that, redemption or transfer restrictions must sit in the articles: who can demand redemption, at what price, and following what process. Otherwise the question is left to inheritance and family law and to general contract law.
Non-compete clauses and confidentiality
There is no separate corporate-law regulation of non-compete clauses in shareholders' agreements. The clauses are assessed under general contract-law and competition-law criteria of proportionality and protectable interests (SHR, 20.8.2025, BS-63793/2023-SHR). Clauses that are too tight risk invalidity. Clauses that are too loose do not protect effectively. The right level depends on the company's specific situation and the role of the person involved.
What the shareholders' agreement cannot stand alone with
A well-functioning shareholders' agreement is coordinated with the company's articles of association. Provisions on rights of first refusal, consent requirements, redemption and voting rules must be in the articles to have legal effect against third parties acting in good faith. Shareholder-agreement terms that conflict with the articles cannot be enforced against the company (Selskabsloven § 82).
It is also essential to align the shareholders' agreement with the chosen company form and capital structure. Differentiated voting rights require provisions in the articles, and restrictions on transferability must appear clearly in order to have external effect (Selskabsloven § 162). For listed companies, transfer and voting-rights restrictions may additionally be suspended during a takeover-bid period — which makes the design of the articles and M&A clauses even more important (Selskabsloven § 341).
When the shareholders' agreement should be renegotiated
The shareholders' agreement should be reviewed and updated on every significant change in the ownership circle, capital structure or governance: new capital, employee equity programmes, business succession or joint ventures. Changes that require the level of the articles must be properly resolved and registered — without registration the position cannot be relied on against third parties (Selskabsloven § 15).
A shareholders' agreement written for three equal founders in 2020 does not necessarily fit a company that in 2026 has an external investor and five employees with warrants.
The legal position — in brief
A shareholders' agreement in principle binds only the parties among themselves and not the company or general-meeting resolutions (§ 82). Transfer restrictions and redemption mechanisms require anchoring in the articles of association for external legal effect; rights of first refusal, consent requirements and price-setting must be regulated in the articles with provision for an independent valuer and judicial review in cases of manifest unreasonableness (§§ 48, 58a, 67–69). Case law confirms the relativity of agreements: a shareholders' agreement does not by its mere existence create obligations for the company or third parties (SHR, 20.8.2025, BS-63793/2023-SHR).
Shareholders' agreements cannot limit the competence of the general meeting; such clauses are invalid as against the company, although there may be remedies for breach between the parties (travaux préparatoires to § 144). Leaver provisions are not separately regulated; if external effect is wanted, they must go into the articles (General Remark 3.1.1). In listed A/S companies, transfer and voting-rights restrictions may be temporarily suspended during a takeover bid (§§ 341–342).
Many owners avoid raising the question of the shareholders' agreement because it feels like a vote of no confidence. That misunderstanding is precisely what costs the most. A shareholders' agreement is not a statement of distrust — it is a statement of respect for the joint project and for the investment both parties have made.