Art. 3a Authorized capital(see endnote 1)
The Board of Directors is authorized, at any time until [ ](see endnote 2), to increase the share capital up to a maximum aggregate amount of Fr. [ ](see endnote 3) through the issuance of a maximum of [ ] registered shares(see endnote 4), which shall be fully paid-in, with a par value of Fr. [ ](see endnote 5) per share. Increases by underwriting(see endnote 6) as well as partial increases are permissible. In each case, the issue price, the date for entitlement to dividends and the type of contribution shall be determined by the Board of Directors. After their acquisition, the newly issued registered shares shall be subject to the transfer limitations foreseen in art. 5 of the Articles of Association.
The Board of Directors is authorized to exclude(see endnote 7) the rights of the shareholders(see endnote 8) to subscribe shares in priority and to convey them to third parties, provided that such new shares are to be used (1) for the takeover of enterprises through share swaps or (2) for financing(see endnote 9) the acquisition of enterprises or divisions thereof, or participations or of newly-planned investments of the Corporation or (3) for employee participations. Shares for which rights to subscribe in priority exist but are not exercised shall be sold(see endnote 10) by the Corporation at market conditions.(see endnote 11)
Endnotes
1. The provisions of the Articles of Association regarding authorized capital are mainly thought of for public corporations. However, contrarily to conditional capital, authorized capital can also be used by small corporations.
Should an authorized capital be established, then it is recommended to complete art. 14 para 3, sec. 9 of the basic version of the Articles of Association as follows, "To the extent that this is of the authority of the Board of Directors, the passing of resolutions concerning increases of capital (art. 651 para. 4 CO), as well as concerning confirmation of the increase of capital and the amendments of the Articles of Association entailed thereby."
2. A maximum of two years (art. 651 para. 1 CO), calculated from the date of registration of the relevant provision of the Articles of Association in the Register of Commerce. Contrarily, there is no such limitation in time with respect to conditional capital.
3. A maximum amount of half of the previously-existing share capital (art. 651 para. 2 CO); when increasing both the share capital and the participation capital, a maximum aggregate of half of the sum of the previously-existing share and participation capital (art. 656b para. 4 CO). The amount registered in the Register of Commerce is relevant as a rule; shares which are not yet issued with respect to conditional capital are not to be taken into consideration. An ordinary capital increase resolved before the authorized capital increase at the same shareholders meeting can be taken into consideration to the extent that the ordinary capital increase is executed and registered immediately thereafter.
4. As the case may be (also or exclusively) bearer shares.
5. As the case may be, privileged voting right shares (cf. endnotes 9 and 45 hereinabove).
6. When underwriting takes place the new shares are at first subscribed by a bank or a bank consortium and are then offered for subscription to the shareholders; thus the shareholder's right to subscribe in priority is indeed formally excluded but is indirectly respected.
7. As the case may be it can be recommended to only exclude the right to subscribe in priority for a part of the increase amount; in such cases it should be added: "with respect to at the most [ ] registered shares".
8. The decision regarding a limitation or an exclusion of the right to subscribe in priority may be delegated to the Board of Directors to the extent that, in its empowerment resolution, the Shareholders Meeting determines the important reasons itself and sets out the principles and the guidelines. To the extent that only the important reasons foreseen by law are to be of relevance, their inclusion in the Articles of Association is sufficient. (However a mere reference to article 652b CO is insufficient); further details are not required in such cases.
9. To the extent that further important reasons (other than those listed in the law) are to be foreseen, they must imperatively be listed in the Articles of Association. In the case mentioned here of the financing of the acquisition of enterprises or divisions thereof or participations or of newly planned investments of the Corporation it must be noted that this is not as such to be considered as an important reason, however the required weighing of interests in the case of certain financing plans can justify an exclusion of the right to subscribe in priority; for example in the case of quoting of the new shares on a foreign stock exchange in order to comply with foreign legal requirements (in particular the obligation to quote the shares of the acquiring company at the registered offices of the purchased company or participation, or at least to place them on the local share market).
10. Should the shares remaining as a result of the non exercised rights to subscribe in priority not be able to be placed in the public, they are in any case to be used exclusively in the interest of the Corporation. A placement in the public is not required in such a case since the rights to subscribe in priority were not excluded but the shareholders freely chose not to exercise their rights to subscribe in priority.
11. For smaller Corporations, the attribution to separate shareholders which are willing to purchase or a proportional reduction of the amount of the capital increase can be taken into consideration, whereby in the latter case a maximum amount must be stated in the increase resolution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The Board of Directors is authorized, at any time until [ ](see endnote 2), to increase the share capital up to a maximum aggregate amount of Fr. [ ](see endnote 3) through the issuance of a maximum of [ ] registered shares(see endnote 4), which shall be fully paid-in, with a par value of Fr. [ ](see endnote 5) per share. Increases by underwriting(see endnote 6) as well as partial increases are permissible. In each case, the issue price, the date for entitlement to dividends and the type of contribution shall be determined by the Board of Directors. After their acquisition, the newly issued registered shares shall be subject to the transfer limitations foreseen in art. 5 of the Articles of Association.
The Board of Directors is authorized to exclude(see endnote 7) the rights of the shareholders(see endnote 8) to subscribe shares in priority and to convey them to third parties, provided that such new shares are to be used (1) for the takeover of enterprises through share swaps or (2) for financing(see endnote 9) the acquisition of enterprises or divisions thereof, or participations or of newly-planned investments of the Corporation or (3) for employee participations. Shares for which rights to subscribe in priority exist but are not exercised shall be sold(see endnote 10) by the Corporation at market conditions.(see endnote 11)
Endnotes
1. The provisions of the Articles of Association regarding authorized capital are mainly thought of for public corporations. However, contrarily to conditional capital, authorized capital can also be used by small corporations.
Should an authorized capital be established, then it is recommended to complete art. 14 para 3, sec. 9 of the basic version of the Articles of Association as follows, "To the extent that this is of the authority of the Board of Directors, the passing of resolutions concerning increases of capital (art. 651 para. 4 CO), as well as concerning confirmation of the increase of capital and the amendments of the Articles of Association entailed thereby."
2. A maximum of two years (art. 651 para. 1 CO), calculated from the date of registration of the relevant provision of the Articles of Association in the Register of Commerce. Contrarily, there is no such limitation in time with respect to conditional capital.
3. A maximum amount of half of the previously-existing share capital (art. 651 para. 2 CO); when increasing both the share capital and the participation capital, a maximum aggregate of half of the sum of the previously-existing share and participation capital (art. 656b para. 4 CO). The amount registered in the Register of Commerce is relevant as a rule; shares which are not yet issued with respect to conditional capital are not to be taken into consideration. An ordinary capital increase resolved before the authorized capital increase at the same shareholders meeting can be taken into consideration to the extent that the ordinary capital increase is executed and registered immediately thereafter.
4. As the case may be (also or exclusively) bearer shares.
5. As the case may be, privileged voting right shares (cf. endnotes 9 and 45 hereinabove).
6. When underwriting takes place the new shares are at first subscribed by a bank or a bank consortium and are then offered for subscription to the shareholders; thus the shareholder's right to subscribe in priority is indeed formally excluded but is indirectly respected.
7. As the case may be it can be recommended to only exclude the right to subscribe in priority for a part of the increase amount; in such cases it should be added: "with respect to at the most [ ] registered shares".
8. The decision regarding a limitation or an exclusion of the right to subscribe in priority may be delegated to the Board of Directors to the extent that, in its empowerment resolution, the Shareholders Meeting determines the important reasons itself and sets out the principles and the guidelines. To the extent that only the important reasons foreseen by law are to be of relevance, their inclusion in the Articles of Association is sufficient. (However a mere reference to article 652b CO is insufficient); further details are not required in such cases.
9. To the extent that further important reasons (other than those listed in the law) are to be foreseen, they must imperatively be listed in the Articles of Association. In the case mentioned here of the financing of the acquisition of enterprises or divisions thereof or participations or of newly planned investments of the Corporation it must be noted that this is not as such to be considered as an important reason, however the required weighing of interests in the case of certain financing plans can justify an exclusion of the right to subscribe in priority; for example in the case of quoting of the new shares on a foreign stock exchange in order to comply with foreign legal requirements (in particular the obligation to quote the shares of the acquiring company at the registered offices of the purchased company or participation, or at least to place them on the local share market).
10. Should the shares remaining as a result of the non exercised rights to subscribe in priority not be able to be placed in the public, they are in any case to be used exclusively in the interest of the Corporation. A placement in the public is not required in such a case since the rights to subscribe in priority were not excluded but the shareholders freely chose not to exercise their rights to subscribe in priority.
11. For smaller Corporations, the attribution to separate shareholders which are willing to purchase or a proportional reduction of the amount of the capital increase can be taken into consideration, whereby in the latter case a maximum amount must be stated in the increase resolution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
