SWITZERLAND Law and Practice Contributed by: Lorenzo Olgiati and Pascal Hubli, Schellenberg Wittmer Ltd
individuals authorised to act on behalf of the company; • ultimately monitoring the individuals entrusted with management responsibilities, in view of compliance with the applicable law, the arti - cles of association, regulations and directives; • preparing annual business reports and share - holders’ meetings as well as implementing their resolutions; • issuing the annual compensation report on the board’s and executive management’s compensation (only for listed companies); and • filing an application for a debt restructuring moratorium and notifying the bankruptcy court if the company’s liabilities are no longer covered by its assets (over-indebtedness). Notwithstanding the non-delegable and inalien - able nature of these responsibilities, the board of directors may delegate the preparation and exe - cution of its resolutions to committees, but not the decision-making itself ( “delegation of deci- sion-shaping but not decision-making” ). Listed companies often establish an audit committee, a compensation committee and/or a nomination committee. Statutory Auditors The statutory auditors serve as a controlling body by (i) reviewing the annual accounts and the motions made by the board to the share- holders’ meeting on the allocation of the balance sheet profit and by (ii) reporting to the share - holders’ meeting whether the annual accounts comply with the statutory provisions, the arti - cles of association and the applicable financial reporting standards. 3.3 Decision-Making Processes The shareholders’ meeting is convened by the board of directors. The notice must include the agenda items and the boards’ motions (and
shareholders’ motions, if any). The board of directors is required to briefly explain its propos - als. In the case of shareholders’ motions, there is an option, but not an obligation, to provide a brief explanatory statement. Resolutions can only be made on motions relating to agenda items that were duly notified (see 5.3 Sharehold- er Meetings ). In general, the absolute majority of the votes represented is necessary to pass a resolution and conduct elections. Resolutions For certain important resolutions (such as the amendment of the company’s purpose, the introduction of conditional capital, of a capital band or of transfer restricted shares), the law requires a qualified majority – ie, two thirds of the voting rights represented and the absolute majority of the nominal value of shares repre - sented. A requirement for a qualified majority may also be increased for other matters by a resolution of the shareholders’ meeting which satisfies the proposed majority requirement. With the entry into force of the company law revi - sion, resolutions of the shareholders’ meeting may now be passed in writing or by electronic means, unless a shareholder or its representa - tive requests oral deliberation. In addition, the owners or representatives of all the company’s shares may, if no objection is raised and pro - vided that the owners or representatives of all the shares participate, hold a plenary meeting – ie, a shareholders’ meeting without comply - ing with the applicable regulations on convening meetings. In most companies, the principle of “one share, one vote” applies. The articles of association may, however, also provide for voting shares. These can often be found in family-controlled companies, both private and listed.
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