SWITZERLAND Law and Practice Contributed by: Mariel Hoch, Dominic Leu and Fabienne Perlini-Frehner, Bär & Karrer
2.10 Shareholders’ Rights Relating to the Business of a Meeting Shareholders holding 5% of the capital or votes of non-listed companies have the right to request that items be placed on the agenda and that motions relat- ing to items on the agenda be included in the notice convening the shareholders’ meeting. A brief explana- tion can be added by the shareholders, which must then be included in the notice convening the share- holders’ meeting. In addition, every shareholder may request motions relating to any agenda item during the shareholders’ meeting. For listed companies, the threshold is 0.5% of the capital or of the votes. Universal meetings (ie, where all shareholders are rep- resented) can pass binding resolutions on all kinds of matters. 2.11 Challenging a Resolution Shareholders can challenge resolutions of a share- holders’ meeting that are null and void at any time. Resolutions are null and void if they: • remove or restrict the right to participate in the shareholders’ meeting, the minimum right to vote, the right to take legal action, or other shareholder rights that are mandatory in law; • restrict the shareholders’ rights of control beyond the legally permissible degree; or • disregard the basic structures of the stock corpo- ration or the provisions on capital protection. Voidable resolutions can be challenged by every shareholder who has not voted for the respective resolution within two months from the passing of the resolution. No minimum shareholding is required, but the contesting shareholder must still be a shareholder at the time of the beginning of the court proceedings. Where the challenging shareholder prevails, the reso- lution of the shareholders’ meeting will be rescinded. Resolutions are voidable if they: • remove or restrict the rights of shareholders in breach of the law or the articles of association;
• remove or restrict the rights of shareholders in an improper manner; • give rise to the unequal treatment or disadvantag- ing of the shareholders in a manner not justified by the company’s objects; or • transform the company into a non-profit organisa- tion without the consent of all the shareholders. 2.12 Institutional Shareholder Groups Shareholders may influence the company’s actions by nominating for election members of the board of directors, as well as by tabling agenda items and bringing motions at the shareholders’ meeting (see 2.10 Shareholders’ Rights Relating to the Busi- ness of a Meeting ). Shareholders may also use their information rights to monitor the company’s activity (see 2.4 Information and Documents Relating to the Meeting ). Influential shareholders sometimes resort to public statements if they deem it necessary to influence the company (see 11. Shareholder Activism ). 2.13 Holding Through a Nominee Shareholders may have their participation rights, in particular their right to vote, exercised by a represent- ative of their choice, unless the articles of association of the company provide otherwise. 2.14 Written Resolutions Written resolutions can be passed in writing on paper or by electronic means (eg, email), unless a share- holder requests an oral debate. 3. Share Issues, Share Transfers and Disclosure of Shareholders’ Interests 3.1 Share Issues Existing shareholders of a company have a right to first subscription in the case of the issuance of new shares. This right can only be limited or extinguished by a resolution of the shareholders’ majority if the company has a valid reason for it. In particular, the takeover of companies, parts of companies or equity interests and employee share ownership are deemed to be valid reasons.
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