## Facts

- A closely held German company (A) had four shareholders and operated in the machinery-equipment sector.
- The same four individuals were also the only shareholders of another company (B) in the same business field.
- The four shareholders entered into an extra-statutory agreement restricting A’s investments: A would invest in other companies only if the investment did not conflict with B’s business.
- At an A shareholders’ meeting, three shareholders adopted a resolution authorizing A to invest in a company competing with B; one shareholder voted against it.
- The dissenting shareholder sued to set aside the resolution, alleging it violated the shareholders’ agreement and the shareholders’ duty of loyalty to each other.

## Issues

1. Whether shareholders may validly bind themselves by extra-statutory agreements to vote in a particular manner in future shareholders’ meetings.
2. Whether a shareholder resolution that is within the formal scope of the articles can be challenged as voidable when adopted in breach of such an agreement and the shareholders’ duty of loyalty.
3. Whether authorizing an investment conflicting with an agreed business framework can constitute a defect warranting avoidance of the resolution.

## Decision

- The court recognized the general validity of extra-statutory shareholder voting agreements in a GmbH context.
- The court held that a resolution may be voidable upon challenge even if formally covered by the articles, where its adoption breaches a binding shareholder agreement and the shareholders’ duty of loyalty.
- The majority’s vote to authorize A’s investment in a competitor of B, contrary to the prior agreement, constituted a loyalty breach supporting the minority shareholder’s challenge.
- The resolution was treated as voidable (not automatically void) and subject to being set aside through a timely challenge action.

## Legal Principles

- Shareholders may enter into binding, extra-statutory agreements obligating them to exercise voting rights in specified ways.
- Shareholders owe each other a duty of loyalty that can constrain the exercise of otherwise formally valid voting power.
- A shareholder resolution can be materially defective, and thus voidable upon challenge, when it violates binding shareholder commitments and loyalty-based limits, even if corporate competence requirements are satisfied.
- Breach of an extra-statutory voting/investment framework typically supports avoidance (Anfechtbarkeit) rather than nullity (Nichtigkeit), absent additional grounds for automatic invalidity.

## Conclusion

The court treated extra-statutory shareholder vote-binding agreements as generally valid and held that a formally authorized shareholder resolution may be set aside as voidable when the majority adopts it in breach of that agreement and the shareholders’ duty of loyalty.


Bundesgerichtshof [BGH] [Federal Court of Justice] Jan. 20, 1983, II ZR 243/81, Neue Juristische Wochenschrift [NJW] 1983, 1910 (Ger.)