Voting rights may be exercised only after a shareholder has been registered in the share register as a shareholder with voting rights up to a specific qualifying day prior to the shareholders’ meeting designated by the Board of Directors (the “Record Date”). For such purpose, art. 5 para. 2 of the Articles of Association provide that persons acquiring shares shall on application be entered in the share register without limitation as shareholders with voting rights, provided they expressly declare themselves to have acquired the shares in their own name and for their own account and comply with the disclosure requirements stipulated by the FMIA. Entry in the share register as a shareholder with voting rights is subject to the approval of the Company.
Entry in the share register as a shareholder with voting rights may be refused based on the grounds set out in art. 5 paras 3-7 of the Articles of Association. If the Company does not refuse to register the acquirer as shareholder with voting rights within 20 calendar days upon receipt of the application, the acquirer is deemed to be a shareholder with voting rights. Non-recognized acquirers shall be entered in the share register as shareholders without voting rights. The corresponding shares shall be considered as not represented in the general meeting.
The Board of Directors may, according to art. 5 para. 3 of the Articles of Association, refuse the registration in the share register as a shareholder with voting rights if an acquirer would as a result of the recognition as a shareholder with voting rights directly or indirectly acquire, or hold in the aggregate, more than 10 percent of the registered shares recorded in the commercial register (the “Percentage Limit”).
The Board of Directors may enter the registration with voting rights in the share register according to art.5 para. 4 of the Articles of Association even if 10 percent of the registered shares recorded in the commercial register are exceeded, (i) for shareholders who held or were allotted more than 10 percent of the registered shares recorded in the commercial register before completion of the IPO and only to the extent they held or were allotted such registered shares at that time and their respective legal successors (“Incumbent Shareholders”); (ii) if an Incumbent Shareholder (or his legal successor, respectively) acquires additional registered shares after the IPO; or (iii) if (A) a spouse, descendent, parent, sibling or an affiliated person of an Incumbent Shareholder (or his legal successor, respectively) or (B) any other acquirer acquires registered shares from an Incumbent Shareholder (or his legal successor, respectively) off-market, but in each case only to the extent such registered shares held by such Incumbent Shareholder (or his legal successor, respectively) had been registered with voting rights in the share register.
According to art. 5 para. 6 of the Articles of Association and subject to art. 652b para. 3 CO, the described limit for registration also applies to the subscription for or acquisition of registered shares by exercising pre-emptive, option or convertible rights arising from shares or any other securities issued by the Company or third parties.
According to art. 5 para. 7 of the Articles of Association legal entities or partnerships or other associations or joint ownership arrangements which are linked through capital ownership or voting rights, through common management or in like manner, as well as individuals, legal entities or partnerships (especially syndicates) which act in concert are considered as one shareholder or nominee.
The Company may in special cases approve exceptions to the above restrictions (art. 5 para. 3, 4 and 5 of the Articles of Association). After due consultation with the persons concerned, the Company is further authorized to delete entries in the share register as shareholder with voting rights with retroactive effect if they were effected on the basis of false information or if the respective person does not provide the information pursuant to art. 5 para. 3 of the Articles of Association. The concerned person has to be immediately informed about the deletion. Until an acquirer of shares becomes a shareholder with voting rights for the shares in accordance with art. 5 of the Articles of Association, he/she may neither exercise the voting rights connected with the shares nor other rights associated with the voting rights.
Subject to the Percentage Limit described above and provided that its holder or usufructuary has been duly entered into the share register as a shareholder with voting rights on or before the relevant Record Date, each share entitles to one vote.
For information regarding Nominee registrations, see section 2.6.3 “Admissibility of Nominee registrations” of this Corporate Governance Report.
No exceptions from the voting rights restrictions (i.e., the Percentage Limit) as set forth in the Articles of Association were granted in the period under review herein.
Art. 12 of the Articles of Association outlines important shareholder resolutions that require a qualified majority, including the easement or abolition of the restriction of the transferability of the registered shares. All other resolutions can be passed by a simple majority of shareholders as set out in art. 11 of the Articles of Association, to the extent that Swiss law does not provide otherwise.
At shareholders' meetings, each shareholder may be represented by the Independent Proxy or by means of a written proxy by any other person who need not be a shareholder. The Board of Directors determines the requirements regarding proxies and voting instructions (art. 11 of the Articles of Association).
Importantly, no shareholder or proxy may, directly or indirectly, exercise voting rights attached to own or represented shares that would collectively exceed 10 percent of the registered shares recorded in the commercial register. Legal entities or partnerships or other associations or joint ownership arrangements which are linked through capital ownership or voting rights, through common management or in like manner, as well as individuals, legal entities or partnerships (especially syndicates) which act in concert are considered as one shareholder for the purposes of such voting. However, the foregoing restriction of voting rights do not apply to the exercise of voting rights by shareholders or their proxies (including the Independent Proxy), to the extent that their shares are registered with voting rights in the share register in accordance with art. 5 para. 4 of the Articles of Association.
The Independent Proxy has a duty to exercise the voting rights assigned to him by shareholders in accordance with their instructions. Further duties of the Independent Proxy are governed by the relevant statutory provisions. Art. 14 of the Articles of Association provides that the general meeting elects an Independent Proxy. Natural persons as well as legal entities and partnerships are eligible for election. The term of office of the Independent Proxy ends at the next general meeting. Re-election is possible. Swiss law allows for proxy instructions both in written as well as electronic form. For the period between the 2021 extraordinary shareholders’ meeting held on 19 April 2021 and the next general meeting, ADROIT Attorneys, Kalchbühlstrasse 4, 8038 Zurich, Switzerland, has been elected as the Independent Proxy.
The Articles of Association do not contain any rules on the electronic participation of shareholders in shareholders’ meetings.
As a result of the COVID-19 pandemic, the Swiss government has issued specific ordinances permitting companies to hold general meetings without the physical presence of shareholders, subject to certain conditions and other requirements.
The Articles of Association do not prescribe that a quorum of shareholders is required to be present at a shareholders’ meeting.
Pursuant to art. 11 of the Articles of Association, shareholders’ resolutions generally require the simple majority of the votes cast at the shareholders’ meeting, to the extent that neither Swiss law nor the Articles of Association provide otherwise. Abstentions, empty votes and invalid votes will not be taken into account for the calculation of the required majority. The Chairman has no casting vote.
Pursuant to art. 12 of the Articles of Association, a resolution passed by at least two thirds of the represented share votes and the absolute majority of the represented shares par value is required for (i) matters listed in art. 704 of the CO and in art. 18 and art. 64 of the Merger Act, (ii) the easement or abolition of the restriction of the transferability of the registered shares, (iii) any amendment or cancellation of art. 31 of the Articles of Association (i.e., exclusion of mandatory tender offer); (iv) any changes to art. 12 of the Articles of Association (i.e., qualified majority for important resolutions).
The Articles of Association do not differ from applicable Swiss statutory legal provisions, other than that the Board of Directors is required to convene an extraordinary shareholders' meeting within two (2) months if requested by one or more shareholder(s) representing in aggregate at least 5% of the Company’s nominal share capital registered in the commercial register. Such demands have to be submitted in writing, setting forth the items to be discussed and the proposals to be decided upon.
A shareholders’ meeting is convened by publishing a notice of such meeting in the Swiss Official Gazette of Commerce at least 20 calendar days before the date of the meeting. To the extent the post and/or e-mail addresses of the shareholders are known, notice may also be sent simultaneously by post and/or e-mail. The notice needs to state the day, time and place of the meeting, the agenda, the proposals of the Board of Directors and the proposals of the shareholders who have requested the shareholders’ meeting or that an item be included on the agenda.
The Board of Directors states the items on the agenda.
Registered shareholders with voting rights individually or jointly representing at least 0.5% of the share capital of the Company may demand that items be put on the agenda. Such demands have to be submitted to the Chairman of the Board of Directors at least 45 calendar days before the date of the relevant shareholders’ meeting and need to be in writing, specifying the items and the proposals.
No resolutions may be passed on motions concerning agenda items which have not been duly announced apart from those exceptions permitted by Swiss law.
Voting rights may be exercised only after a shareholder has been registered in the share register as a shareholder with voting rights up to a specific qualifying day designated by the Board of Directors (i.e., the Record Date).
There are no statutory rules concerning deadlines for entry in the share register. However, for organizational reasons, the share register is closed several days before the respective shareholders’ meeting. The respective Record Date for inscriptions in the share register is announced in the invitation to the shareholders’ meeting.
For information on certain limitations on transferability and nominee registrations, please refer to the information provided under the section 2.6 “Limitations on transferability and Nominee registrations” of this Corporate Governance Report. For information on certain limitations on share voting rights, please refer to the information provided under the section 6.1.1 “General rules on restrictions to voting rights” of this Corporate Governance Report.