Private Equity Minority Investments - Universität St.Gallen

Part Two: Legal Framework and Toolsthe dates and time limits applying to the convening of general meetingsshould be clearly stated. The articles of association may provide for aperiod shorter than six months following the end of the fiscal year withinwhich the ordinary general meeting shall be convened. 1299 Moreover, ifconsidered useful for a proper preparation of the general meeting, thearticles of association may stipulate a longer than the 20-day invitationperiod. 1300 A period of more than 30 days is, however, not advisablebecause it prevents the timely convening of the general meeting inextraordinary situations that require critical decisions to be made within areasonable period of time. 1301 The shareholders can also determine the formof the invitation as well as the location for the general meeting. Particularly,in closely held companies and family firms, it is common to invite familymembers, or in the case of PEMIs certain employees or advisors, who arenot shareholders as guests. 13025.3.2 AgendaThe right to put items on the general meeting agenda is one of the mostfundamental formal shareholder rights to raise shareholder concerns. 1303The legal threshold to request a particular item to be placed on the agendaof the upcoming general meeting – the nominal value of shares of CHF 1million, or 10% of the share capital – may be lowered via a respectiveprovision in the articles of association. 1304 This right may also be granted toeach shareholder as an individual right irrespective of the size of his/hershareholding. 1305 If the threshold of these rights is expressed in terms of thenominal value of shares, the respective thresholds must be revisited eachtime the nominal value of shares is changed to ensure that the PEMI’s rightsare not curtailed. 1306 Moreover, shareholders’ deadline to request that itemsbe placed on the agenda and/or associated motions should be determined. In1299See DUBS/TRUFFER, Basler Kommentar, CO 699, N 22 e contrario. With respect to theGmbH, see TRUFFER/DUBS, Basler Kommentar, CO 805, N 5.1300See TANNER, Beschlussfassung, p. 765; WEBER, Vertrags- und Statutengestaltung, p. 83(“z.B. 30 Tage”). In a GmbH, the period of 20 days may be extended or shortened to no lessthan 10 days by means of the articles of association (CO 805 III).1301See DUBS/TRUFFER, Basler Kommentar, CO 700, N 7; FORSTMOSER/MEIER-HAYOZ/NOBEL,§ 23, N 41; cf. also HOFSTETTER, Corporate Governance Report, p. 14.1302The decision is in the hands of the chairperson. See MEIER-HAYOZ/FORSTMOSER, § 16, N 371et seq.1303See HOFSTETTER, Schlüsselrolle, p. 519.1304Numerous publicly listed corporations have lowered the threshold in the articles ofassociation. See MEIER-HAYOZ/FORSTMOSER, § 16, N 362. Also the Swiss Code of BestPractice (SCBP) 2.1305See DUBS/TRUFFER, CO 699, N 25; FORSTMOSER/MEIER-HAYOZ/NOBEL, § 39, N 136.1306See SCBP 2.208