SWITZERLAND Law and Practice Contributed by: Mariel Hoch, Dominic Leu and Fabienne Perlini-Frehner, Bär & Karrer
Shareholders of non-listed companies represent- ing 5% of the capital or of the votes hold the right to inspect the company’s books and records, to the extent this is necessary to exercise their rights prop- erly and provided that no trade secrets or other com- pany interests warranting protection are put at risk. Shareholders of non-listed companies representing 10% of the capital or votes also have the right to receive requested information on company matters outside the shareholders’ meeting in writing from the board of directors. The board of directors is obliged to provide the information in so far as it is required for the proper exercise of shareholders’ rights, and provided no trade secrets or other company interests warranting protection are put at risk. Any refusal of the board of directors must be justified in writing. The requesting shareholders can challenge such decision of the board of directors in court within 30 days. Shareholders of listed companies do not have the aforementioned information rights – they are already entitled to receive more information due to the fact that the company is listed. In particular, listed com- panies must disclose all information that might affect the share price (so-called ad hoc publicity). Moreover, listed companies must provide, inter alia: • a half-year report; • a non-financial report; • a compensation report; and • a corporate governance report. 2.5 Format of Meeting Shareholders’ meetings can be held in the form of: • a physical meeting; • a hybrid meeting (physical meeting with remote participants who exercise their voting rights elec- tronically); or • an entirely virtual meeting, if the articles of associa- tion of the company so allow. However, if electronic means are used, the board of directors must ensure that: • the identities of the participants are established; • the oral contributions are directly transmitted;
• each participant can table motions and participate in the debate; and • the result of the vote cannot be falsified. Entirely virtual shareholders’ meetings require a basis in the company’s articles of association. Also, if no shareholder requests an oral debate, resolutions can be passed in writing (on paper or by electronic means – eg, email). Physical shareholders’ meetings outside Switzerland are possible if the articles of association provide for such meetings. 2.6 Quorum, Voting Requirements and Proposal of Resolutions Whether the required majority is reached is typically decided based on the shares that are represented at the shareholders’ meeting. This means that no quo- rum is required to hold a shareholders’ meeting if the articles of association do not provide otherwise. 2.7 Types of Resolutions and Thresholds Shareholders’ resolutions can be passed at a physi- cal, virtual or hybrid (ie, physical with remote partici- pants) shareholders’ meeting. In addition, a circular resolution (on paper or by electronic means – eg, email) is possible provided no shareholder requests an oral debate. The articles of association of the company must explicitly provide for the possibility of holding a virtual shareholders’ meeting. In listed companies, certain proxy advisers recommend voting against the intro- duction of the possibility of holding virtual sharehold- ers’ meetings. The board of directors must decide whether remote participants are entitled to exercise their rights elec- tronically – ie, whether a hybrid shareholders’ meeting is possible. 2.8 Shareholder Approval The CO contains a list of resolutions that must be decided by the shareholders’ meeting. The list com- prises the following inalienable powers:
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