1 Agenda of the AGM

The agenda of the AGM is essentially determined by certain periodic agenda items, inter alia the acknowledgment of the audit report and the approval of the annual financial statements, the resolution on the appropriation of retained earnings and, if applicable, the approval of the management report and the consolidated financial statements, as well as the election of the members of the Board of Directors and the auditors.

In the case of listed companies, the agenda also includes the election of the Chairperson of the Board of Directors, the members of the Remuneration Committee and the independent proxies. The AGM must also decide on the remuneration of the Board of Directors, the Executive Board and the Advisory Board. However, the resolution on remuneration does not necessarily have to be passed within 6 months after the end of the financial year.

The Board of Directors must also consider whether the company is subject to the provisions on non-financial matters pursuant to article 964a et seq. of the Swiss Code of Obligations. If that is the case, a report on non-financial matters must also be submitted to the AGM for approval.

For listed companies, the election of the Board of Directors must take place at every AGM within 6 months after the end of the financial year. The term of office of the members of the Board of Directors is not automatically extended until a possible re-election. The latter also applies to members of the Board of Directors of non-listed companies. According to the case law of the Federal Supreme Court, the AGM must make a statement on the election of the Board of Directors at the end of the term of office. If the Board of Directors fails to convene the AGM in good time or to put the election of the Board of Directors on the agenda, the term of office of the Board of Directors ends without further action at the end of the 6 months following the end of the financial year. From this point onwards, the Board of Directors is no longer a formal body of the company, which leads to a deficiency in the corporate organisation. The previous members of the Board of Directors mutate into a so-called “de facto body“. The powers of such a de facto body are controversial in theory and must be examined carefully in each individual case. However, the Federal Supreme Court has clarified in a judgement that the non-re-elected Board of Directors, as a de facto body, is not even entitled to convene an AGM and can therefore de facto only seek to hold a plenary meeting. In order to prevent such (partial) dysfunctionality of the Board of Directors or the company as a whole, the election of the Board of Directors should be carried out in good time. Up to a certain point, this problem may also be mitigated by modifying the term of office of the Board of Directors in the articles of association.

The agenda of the AGM can be extended at will by the Board of Directors or by shareholders within the scope of their right to add items to the agenda. In particular, it is advisable to propose the discharge of the Board of Directors and the management for the past financial year (discharge resolution). With the discharge resolution, the individual members of the Board of Directors are discharged for any claims of the company arising from known or recognisable facts and business transactions. For the member of the Board of Directors concerned, this reduces the risk of liability claims from shareholders. Therefore, it is in the interest of the Board of Directors to add its discharge to the agenda.

The Board of Directors must take various legal and practical organisational precautions to enable the AGM to pass resolutions on the aforementioned agenda items.

2 Financial and non-financial reporting

Immediately after the end of the financial year, the Board of Directors must prepare the annual report respectively the annual financial statements, consisting of the balance sheet, the income statement and the notes, and, if applicable, the consolidated financial statements, the management report and the report on non-financial matters. Listed companies are also required to prepare a remuneration report. The preparation of these reports should begin immediately after the end of the financial year so that the auditors have sufficient time to carry out the necessary audit procedures.

3 Coordination with the auditors

The AGM can only approve the annual financial statements and consolidated financial statements and decide on the appropriation of retained earnings if an audit report is available. For this purpose, the annual financial statements, the consolidated financial statements and the proposal of the Board of Directors on the appropriation of the retained earnings and the repayment of capital reserves as well as the remuneration report must be audited by the auditors. The management report is not part of the annual financial statements and is therefore not subject to the audit. When communicating with the auditors, it should be noted that in case of an ordinary audit, the auditors must be present at the AGM and the date of the AGM must therefore be coordinated with them. Their presence can only be waived by means of a unanimous resolution, which normally cannot be expected for larger companies. If the AGM is nevertheless held without the presence of the auditors, its resolutions may be challenged.

4 Decision on the form of the AGM

Since the revised company law came into force on 1 January 2023, there are different ways to hold an AGM. Traditionally, the AGM takes place at one venue with the physical presence of the shareholders. However, it can also be held at several venues simultaneously (known as a “multilocational general meeting“), with physical and electronic participation (known as a “hybrid general meeting“) or purely virtually as a “virtual general meeting“. However, a purely virtual general meeting requires a corresponding provision in the articles of association of the company. Under the same condition, it would also be possible to hold general meetings abroad. However, due to the different criteria relating to the registered office of a company under foreign law, this is not advisable or should only be considered after a prior tax assessment. Otherwise, the company runs the risk of tax liability abroad.

When deciding on how to hold the AGM, the Board of Directors should weigh up the advantages and disadvantages as well as the costs and added value for the shareholders. Particularly if a hybrid or virtual AGM is being considered, it is worth obtaining cost estimates in advance from various service providers who can provide the necessary technical infrastructure or assist with the technical implementation. The question then arises as to whether shareholders actually have a need for a virtual or hybrid AGM.

5 Organisational arrangements for the AGM with a venue

If the Board of Directors decides to hold an AGM with a venue, it must determine such venue. In determining the venue, no shareholder may be unreasonably impeded in exercising its rights in connection with the AGM. In particular, the size of the shareholder base must be taken into account. In case of a dispersed shareholder base, a meeting venue at the company’s registered office and the surrounding area is generally justified. It should be noted that an internationally dispersed shareholder base does not in itself entitle to a meeting venue abroad. This also applies if the majority of the shareholders are concentrated in one country (see section 4 above on holding the AGM abroad). The availability of possible venues should be checked as early as possible. Technical tools such as microphones, presentation equipment and, in the case of a larger shareholder base, voting systems should be organised. In addition, it is advisable to assign and instruct personnel for the entry and attendance control and, if necessary, for the counting of votes at the AGM.

5.1 Special features of an AGM with several venues

An AGM with different venues poses organisational challenges that require detailed planning. If the AGM is held at different locations, Art. 701a para. 3 of the Swiss Code of Obligations stipulates that it must be ensured that the votes of the participants are immediately transmitted in audio and video to all meeting locations. This requires technical solutions that enable real-time transmission. It is not prescribed by law how the Board of Directors must organise the transmission, the chairing of meetings, the interaction, the voting and the recording of minutes. The decisive factor is that the AGM can be held in an orderly manner and that the shareholders can exercise their rights. To this end, participants at the various meeting venues must be able to interact with each other and be aware of what is happening at the other meeting venue(s). In addition, the Chairperson, who is only physically present at one location, must be able to exercise control and influence. On the day of the AGM, an entry check must be carried out at each meeting venue and the attendance must be reported to the Chairperson of the AGM. If voting does not take place by electronic means, the votes must also be counted individually at each venue, the result must then be sent to the Chairperson and tallied with the results from the other venues. The technical equipment required for this should be organised as early as possible and tested before the AGM.

5.2 Special features of hybrid and virtual AGMs

When preparing a hybrid or virtual AGM, a reliable technical infrastructure and software solution must be in place with which the AGM can be held. Shareholders must be able to participate in the AGM, exercise their right to vote, submit motions and request information and take part in the discussion. There are specialised shareholder services providers who have the necessary infrastructure, know-how and experience to conduct an AGM. When choosing a software solution, it is essential to ensure that it has appropriate security measures in place to prevent unauthorised participation and the falsification of voting results. The service provider should ideally be selected several months in advance. It is recommended that the company works closely with the service provider and the legal advisors to prepare for the AGM in order to ensure that the AGM is carried out in the best possible way from a technical and legal perspective.

In accordance with Art. 701e of the Swiss Code of Obligations, the Board of Directors must govern the use of electronic means. This can be done in a set of regulations or as an organisational reference in the invitation to the AGM itself. In particular, the main features of the identity and legitimacy check, the interaction and flow of information between the participants, the question of how shareholders can exercise their rights and how to deal with technical problems must be defined. Identity and legitimacy checks also raise data protection issues. The regulations on the use of electronic means and the privacy policy should be set out by the Board of Directors in a formal resolution 1-2 months before the AGM. With the invitation to the AGM, the Board of Directors must inform the shareholders about the selected software solution and its operation. It makes sense to do this using step-by-step instructions that are easy to understand, with or without graphics. In addition, it is advisable to answer expected questions about technical and legal aspects such as the installation of the program, exercising shareholder rights and data protection aspects in advance in an FAQ. Depending on the size of the shareholder base, it is advisable to set up a contact point for answering shareholders’ questions and technical difficulties in the period immediately before and during the AGM.

For data protection and criminal law reasons, the Board of Directors should also state in the invitation whether or not the AGM will be recorded. If a shareholder does not agree to a recording, they can organise a proxy and exercise their shareholder rights via their appointed representative.

5.3 Technical problems

Due to the use of electronic means, AGMs with multiple venues as well as hybrid and virtual meetings are susceptible to technical problems. It should be noted that the AGM must be repeated if technical problems occur that are the responsibility of the company. Technical problems within the shareholder’s responsibility, such as problems with the internet connection or the shareholder’s own hardware or software, do not generally prevent the AGM from being held properly.

In the event of technical problems when casting votes or determining the voting result, it is advisable to repeat the vote at the AGM. Whether problems occurring before or during the adoption of a resolution always lead to the resolution being contestable or whether a certain causality of the technical problem to the adoption of the resolution is required is currently still the subject of controversial debate.

A situation-specific response to technical problems is important in order to avoid jeopardizing the validity of the resolution and to avoid a repetition of the AGM. This can be remedied by technical support, which immediately takes care of any problems during the AGM and can thus minimize the duration of interruptions. In view of the current lack of clarity and the legal consequences of technical problems, the Board of Directors should carefully prepare the use of electronic means and seek legal support. In particular, the benefits must be weighed against the existing risks.

6 Updating the share register – Persons authorised to vote

For companies with registered shares, the share register forms the basis for determining the right to participate and vote, as the voting right of such shares generally only exists upon entry in the share register. The Board of Directors can issue instructions for determining the right to participate and vote. In order to be able to determine the persons entitled to attend and vote in good time, a cut-off date is usually set in the invitation to the AGM, from which the share register is closed for entries until the day after the AGM. This cut-off date would be a date between the date of the invitation and the date of the AGM and should be explicitly stated in the invitation. By closing the share register before the AGM, the Board of Directors can send admission cards or access data as well as the aids required for voting to the authorized shareholders before the AGM.

7 Convening of the AGM

The AGM is convened by the Board of Directors at least 20 days before the date of the AGM. The invitation must state the date, the beginning, the type and venue or venues of the meeting, the items on the agenda, the motions of the Board of Directors and, in the case of listed companies, a brief explanation of these motions, any shareholder motions including a brief explanation and, if applicable, the name and address of the independent proxy. Shareholders should be able to decide on the basis of the invitation whether they wish to attend in person or be represented. The invitation should also enable the shareholder to prepare for the AGM. New agenda items can only be included if the 20-day notice period is observed. Amendments to the proposals of the Board of Directors are possible to a limited extent, provided that the unity of the subject matter and the principle of non-abuse of rights are observed.

Meetings must always be convened by the means of communication provided for in the Articles of Association. The Board of Directors is responsible for the correct and timely convening of such meetings.

When calculating the 20-day period, the day on which the period begins and the day of the AGM are not counted. In the case of convocation by post or e-mail, the 20-day period begins with the posting or dispatch of the e-mail. If the meeting is convened by publication in the Swiss Official Gazette of Commerce, the day of publication triggers the deadline.

8 Shareholders’ right to place items on the agenda and submit motions

The Board of Directors must include agenda items or motions proposed by shareholders in the invitation to the AGM, including the reasons for such motions. Shareholders who individually or collectively hold more than 5% – or 0.5% in the case of listed companies – of the share capital or votes may request that items be included on the agenda, together with a corresponding motion and a brief explanation.

The same thresholds apply in the event that a shareholder wishes to add its own motion to the agenda items. However, such motions are submitted blindly by shareholders, as the agenda for the AGM in question is not yet known before the invitation is sent out.

It is therefore advisable for the Board of Directors to proactively approach shareholders in advance of the AGM and ask them to submit any agenda requests and motions within a reasonable period of time. The Board of Directors can also point out that motions received later can no longer be considered.

Notwithstanding the above, every shareholder is entitled to submit motions on items on the agenda at the AGM.

9 Edition of the annual report and the audit report

The annual report and the audit report must be made available to the shareholders at least 20 days before the AGM. If the documents are not available electronically, any shareholder may request that they be sent to them in good time. After the AGM, any shareholder may request delivery of the approved annual report and the audit report within one year.

10 Day of the AGM

In the last two weeks before the AGM, the Board of Directors should test the audio and video transmission and the exercise of shareholders’ rights when using electronic means. If the AGM is held in whole or in part physically, the persons who will be responsible for monitoring the entry and attendance during the AGM must be instructed.

10.1 Entry and attendance check – Legitimacy check

In principle, only shareholders or their representatives, the members of the Board of Directors and the Executive Board may attend the AGM. Guests may be admitted. However, they may not take part in the discussion and voting, as the resolutions of the AGM may be contested if unauthorised persons participate. In order to prevent the participation of unauthorised persons, an admission check must be carried out. In case of electronic participation, this is done by means of a legitimacy check. A two-factor identification guarantees sufficient security. However, it is not required by law. It is also possible to verify legitimacy by sending a personal access link via the email address stated in the share register, facial recognition or identification by showing a photo ID, whereby the latter method is probably the least suitable for large companies. During the AGM, it must be possible to record and determine at any time how many shares and what proportion of the nominal value are represented. At a physical AGM, this is done by means of a door check, which records shareholders leaving and re-entering the meeting room and informs the Chairperson of the number of votes present before each vote or election. In the case of virtual participation, the entry and exit of shareholders can be recorded electronically. It is advisable for the Board of Directors to ask shareholders not to leave the AGM for the duration of the respective vote. This way, the number of shareholders present can be reliably determined during each vote in order to assess whether the required quorum has been reached.

10.2 Voting and determination of the voting result

Votes can be cast, for example, by a show of hands, with ballot papers, electronic voting forms or voting machines. Electronic voting devices offer a major advantage, especially for large companies, because the number of yes/no votes and abstentions can be analysed quickly. In addition, the automatic evaluation of the vote is less prone to errors, provided that the voting system used is protected from outside interference. When analysing the voting results, restrictions on voting rights must also be observed, particularly in the case of listed companies.

10.3 Chair of the meeting

The AGM is chaired by the Chairperson. If the Articles of Association do not contain a provision regarding the chairmanship of the AGM, the Board of Directors must appoint the chair. As a general rule, the Chairperson of the Board of Directors or another member of the Board of Directors takes the chair. The Chairperson appoints the scrutineer and can, among other things, limit speaking time and expel shareholders from the venue or virtual room if they do not comply with the rules of order. In addition, the Chairperson decides on disputed attendance and voting authorizations for the AGM. When chairing the meeting, the Chairperson must be guided by the principles of proportionality, equal treatment, neutrality and decision-making efficiency.

10.4 Recording

Minutes must be taken for each AGM and be signed by the Chairperson and the secretary of the meeting. The minutes must record the date, beginning and end as well as the type and location of the AGM, the shares represented, with details as to the shares being represented by corporate body representatives, independent proxies and proxy holders representing deposited shares, the resolutions and election results, requests for information and the corresponding answers, statements made by shareholders for the record and technical problems. By law, the minutes do not have to include the discussion of individual agenda items. However, in case of contentious issues, it may be useful to record any discussions. The minutes may be recorded in writing or electronically. If the AGM is to be recorded for the purpose of taking minutes, in addition to an early announcement (see section 5.2 above), the consent of the persons present should also be obtained if possible.

11 Public notarisation of resolutions

Certain resolutions of the AGM must be notarised. These include all resolutions on changes to the company’s capital and resolutions amending the Articles of Association. For public notarisation, a notary public must attend the AGM to draw up the public deed. The Board of Directors should contact the notary public at an early stage in order to coordinate the preparation and/or organisation of the AGM

As the transitional period of the revised company law expired on 31 December 2024, the Board of Directors should examine whether the Articles of Association need to be amended. Any provisions of the Articles of Association that are incompatible with the revised company law automatically ceased to apply on 1 January 2025. The resulting contradictions between the Articles of Association and the law may lead to uncertainty and the need for explanations. This should be avoided if possible. The AGM offers a good opportunity to carry out such a revision of the Articles of Association.

12 Follow-up

After the AGM, the Board of Directors must finalise the minutes and make them available to the shareholders on request within 30 days of the AGM. In case of listed companies, the resolutions and election results must be published within 15 days. In addition, the approved annual report, audit report, management report and the approved consolidated financial statements must be made available to shareholders on request. Finally, the Board of Directors must implement the resolutions of the AGM. This includes the registration of new members of the Board of Directors, the auditors and the deletion of resigned persons from the commercial register, as well as the payment of any dividends.