AGM Season Ahead: Consider Adapting Your Articles!
The revised Swiss corporations law came into force on January 1, 2023. It brings various innovations for stock corporations and limited liability companies, some of which represent codifications of current legal practice.
Although there is a transitional period until December 31, 2024 for the implementation of the new law into the articles of association (the "Articles"), it is advisable to implement more quickly, as the law provides a number of simplifications and flexibilities that can only be used on the basis of a foundation in the Articles. This applies, for example, to the new provisions on the conduct of general meetings or the capital range.
Some provisions that previously had to be explicitly included in the Articles in order to be valid will correspond to the legal concept from January 1, 2025 at the latest, i.e. they will apply without the Articles having to comment on them. If, for example, a company previously did not want to allow the delegation of management from the board of directors to individual members or third parties, it was sufficient to leave the Articles silent on the matter. Now the delegation is provided for by law, which is why a prohibition must be explicitly anchored in the Articles.
There are also regulations for which no statutory basis was previously required, but for which such a basis is now necessary, e.g. for the holding of general meetings abroad.
Since amendments to the Articles must be approved by the shareholders or members, it is advisable to review the need for amendments before the next ordinary general meeting.
We are happy to support you in this task. Please get in touch if you want to start this project with us.
The most important new features of the revised stock corporation act for non-listed companies are listed in brief below.
Share capital in foreign currency
Flexibilization for nominal share values
Changes to contributions / acquisitions in kind, in particular abolition of the intended acquisition in kind
Adjustments to capital protection measures (thresholds and holding periods for treasury shares, harmonization of stock corporation law with the revised financial reporting law)
Flexibility in profit distributions: introduction of interim dividend
Adaptions regarding return of unjustified benefits granted to shareholders, directors and affiliates
Lowering of thresholds for the assertion of minority rights
Adjustments regarding the provision of information by LTDs and LLCs (incl. shareholders' rights to information and inspection)
Possibility of introducing arbitration clause in the Articles
Changes to the rights to convene, set agendas and submit motions to the general meeting
Introduction of shareholders' circular resolutions
Flexibilities in the conduct of the general meeting (multi local, foreign venue, virtual and hybrid)
Decisive vote of the chairman of the general meeting
Flexibility in the conduct of board meetings
Term of office of board members (in principle 3 years)
Delegation of management without statutory basis
Information duties in case of conflicts of interest of directors and officers
Various adjustments and innovations for companies in financial distress
Innovations in liability law
