Rs 221.331 Order Of November 20, 2013 Against The Unfair Compensation In Corporations Publicly Traded Shares

Original Language Title: RS 221.331 Ordonnance du 20 novembre 2013 contre les rémunérations abusives dans les sociétés anonymes cotées en bourse (ORAb)

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221.331 order against unfair compensation in corporations publicly traded shares of November 20, 2013 (Status January 1, 2014) the Swiss federal Council, view the art. 95, al. 3, and 197, c. 10, of the Constitution, stop: Section 1 scope of application art. 1. the provisions of this order apply to corporations to the senses of the art. 620 to 762 of the code of obligations (CO) whose shares are publicly traded in Switzerland or abroad (company).
They prevail the contrary provisions of the CO. The right of the public law corporations to delegate representatives in the Board of Directors and revoke them (art. 762 CO) is reserved.

RS 220 Section 2 General Assembly (art. 698, para. 2 CO) art. 2. the General Assembly has the non-delegable right: 1. to elect the Chairman of the Board of Directors; 2. to elect the members of the Committee compensation; 3. to elect the representative independent; 4. to vote on the compensation of the Board of Directors, of the persons to whom all or part of the company's management has been delegated by the Board of Directors (branch) and the Advisory Council.

Section 3 Board of Directors art. 3 Election and term of office of the members of the Board of Directors (art. 710 CO) individually, the General Assembly elects the members of the Board of Directors.
The term of office ends at the end of the next annual general meeting. A re-election is possible.

Art. 4 Election and term of office of the president of the Board of Directors (art. 712 CO) the General Assembly elects the president from among the members of the Board of Directors.
The term of office ends at the end of the next annual general meeting. A re-election is possible.
The General Assembly can dismiss the president of the Board of Directors.
When the office of president is vacant, the Board of Directors appoints a new president for the period up to the end of the term of office. The articles may provide other provisions to address the deficiency in the organization.

Art. 5 grant inalienable (art. 716a, para. 1, CO) Board of Directors has the non-delegable and inalienable award to establish the remuneration report.

Art. 6 delegation of management (art. 716b, para. 1, CO) the articles may authorize the Board of Directors to delegate all or part of the management to one or more of its members or other individuals in accordance with the organisational regulations.
Wealth management can also be delegated to a legal person in accordance with para. 1 section 4 Compensation Committee (art. 716 a, para. 2 CO) art. 7. the General Assembly elects individually the members of the Compensation Committee.
Only members of the Board of Directors are eligible.
The term of office ends at the end of the next annual general meeting. A re-election is possible.
When the Compensation Committee is not complete, the Board of Directors appoints new members for the period up to the end of the term of office. The articles may provide other provisions to address the deficiency in the organization.
The articles of Association determine the principles governing the tasks and skills of the Compensation Committee.

Section 5 representing independent art. 8 Election and term of office the General Assembly elects the independent representative.
Are eligible natural or legal persons and partnerships.
Independence must be neither restricted in practice or appearance; art. 728, al. 2 to 6, CO applies by analogy.
The term of office ends at the end of the next annual general meeting. A re-election is possible.
The General Assembly may revoke the independent representative for the end of the General Assembly.
When the company doesn't have a representative independent, the Board refers to the next General Assembly. The articles may provide other provisions to address the deficiency in the organization.

RS 220 art. 9 granting of powers and instructions (art. 689a CO) the Board of Directors ensures that the shareholders have the opportunity: 1. to give instructions to the representative independent on any proposal mentioned in the convening and relating to the items on the agenda; 2. to provide general instructions to the independent representative on the unannounced proposals relating to the items on the order of the day and on the new objects to the senses of the art. 700, al. 3, CO; 3. grant also electronically the powers and instructions to the independent representative.

Powers and instructions may be granted only for the forthcoming General Assembly.

RS 220 art. 10 bonds of the independent representative the independent representative shall exercise the voting rights in accordance with the instructions given by the shareholders.
When he received no instruction, he refrains.

Art. 11 prohibited representation (art. 689c and 689 CO) the representation of the shareholders by a member of an organ of the company or a depositary, to the senses of the art. 689c and 689 CO, is prohibited.

RS 220 Section 6 statutory provisions (art. 626 and 627 CO) art. 12. the statutes must contain provisions on: 1. the number of allowed functions occupied by members of the Board of Directors, the management and the advisory bodies Senior Directors of legal entities who have the obligation to enroll in the registry of trade or similar register abroad and which are not controlled by the company or which control not the company or management; 2. the maximum duration and the maximum notice of contracts which provide for the remuneration of the members of the Board of Directors and management; the length and the period of leave may not exceed one year; 3. the principles governing the tasks and skills of the Compensation Committee; 4. the terms of the vote of the General Assembly on the remuneration according to art. 18, al. 1, 2, 1 sentence, and 3.

Are valid on the condition to be included in the statutes provisions: 1. the amount of loans, credits and pension benefits outside the pension granted to members of the Board of Directors, the management and Advisory Council; 2. the principles of granting of remuneration linked to results to members of the Board of Directors, management and the Board Advisory; 3. the principles of granting of equity securities, conversion rights and option rights to members of the Board of Directors, management and the Board Advisory; 4. the ability to delegate management; 5. the additional amount that is intended to ensure the remuneration of management members appointed after the vote of the General Assembly on the salaries; 6. details of how to proceed in case of refusal of the remuneration by the General Assembly according to art. 18, al. sentence 2, 2, and 3; 7. derogations from the provisions concerning the designation of the president of the Board of Directors (art. 4, para. 4), members of the Compensation Committee (art. 7, al. 4) and the independent representative (art. 8, al. 6); 8. payments paying activities of members of the Board of Directors, the management and the Advisory Council in companies that are controlled directly or indirectly by the company (art. 21, ch. 2).

Section 7 compensation article report 13 in general (art. 663b, 696, 958c, 958d, exp. 2-4, 958e, para. 1, and 958f CO) the Board of Directors establishes annually a remuneration report written with the information provided for in art. 14-16. This report replaces the information in the annex to the balance sheet referred to in art. 663b CO.
The requirements laid down in art. 958c, 958d, al. 2 to 4, and 958f CO apply by analogy to the remuneration report.
The provisions on the management report (art. 696 and 958e, para. 1, CO) apply to communication and the publication of the remuneration and the report of the Auditors report according to art. 17 RS 220 art. 14 compensation paid to the Board of Directors, management and the Advisory Council (art. 663b, para. 1, 2 and 4, CO) should be included in the remuneration report any compensation that the company has paid: 1. directly or indirectly to members based on the Board of Directors; 2. directly or indirectly to the members in Office Management; 3. directly or indirectly to members based on the Council Advisory; 4. directly or indirectly to the former members of the Board of Directors, the management and the Board, when they are in relationship with their former activity of the company or body when they do not conform to the conditions of the market; pension benefits are not covered.

The benefits include the following:

1. the fees, salaries, bonuses and credit; 2 notes. the percentages of profits, the participations in the turnover and other participation in the result of operations; 3. service delivery and benefits in-kind; 4. equity securities, conversion rights and rights option; 5. the hiring premiums; 6. bonds, bonds of guarantee, the constitution of pledges in favour of third-party and other collateral; 7. the waiver of debts; 8. the charges which melt or increase rights to pension benefits; 9. all of the services paying the additional work.

The indications of the benefits include: 1. the overall amount granted to the members of the Board of Directors, and the amount granted to each of them, with mention of its name and its function; 2. the total amount granted to members of management, as well as the amount awarded to the manager whose remuneration is the most high, with mention of the name with this member function; 3. the total amount granted to the members of the Advisory Board, as well as the amount granted to each of them, with mention of its name and its function; 4. If so, the overall additional amount granted to management according to art. 19, and the amount granted to each Member, with mention of their name and their function.

Art. 15 loans and credits to members of the Board of Directors, management and the Advisory Council (art. 663b, par. 3 and 4, CO) should be indicated in the remuneration report: 1. the loans and other current credits to members based on the Board of Directors, management and Advisory Council; 2. loans and other current credits to former members of the Board of Directors, the management and the Advisory Council which do not conform to the conditions of the market.

Information on loans and credits include: 1. the overall amount granted to the members of the Board of Directors, and the amount granted to each of them, with mention of its name and its function; 2. the total amount granted to members of management, as well as the amount awarded to the manager whose remuneration is the most high, with mention of the name with this member function; 3. the total amount granted to the members of the Advisory Board, as well as the amount granted to each of them, with mention of its name and its function.

Art. 16 allowances, ready and credits granted to relatives (art. 663b, al 3, c. 3 et al 5, CO) shall be indicated separately in the remuneration report: 1. the allowances that society has granted directly or indirectly to the relatives of the persons referred to in art. 14, al. 1, which do not conform to the conditions of the market; 2. loans and other current credits to the relatives of the persons referred to in art. 15, al. 1, which do not conform to the conditions of the market.

The name of these relatives should not be mentioned.
For the rest, the provisions governing the information on allowances, loans and credits granted to the members of the Board of Directors, the management and Advisory Board are applicable.

Art. 17 audit by the Auditors (art. 728a and 728b CO) the Auditor verifies if the remuneration report is in line with the legal provisions and to the present order. Art. 728b CO applies by analogy.

RS 220 Section 8 Vote General Assembly on wages art. 18 compensation of the Board of Directors, management and the Advisory Council General Assembly vote on the compensation of the Board of Directors, management and Advisory Board they receive directly or indirectly from the company.
The statutes regulate the method of voting. They can resolve how to proceed in case of refusal of the remuneration by the General Assembly.
The following minimum conditions must be met: 1. the General Assembly vote annually on compensation; 2. the General Assembly voted separately on the overall amounts granted to the Board of Directors, management and the Board Advisory; 3. the vote of the General Assembly has a binding character.

Art. 19 additional amount for management when the General Assembly votes on the remuneration of management on a prospective basis, the statutes may provide for an additional amount for the remuneration of the members of management appointed after the vote.
The additional amount can be used for the period up to the next general meeting when the overall amount decided by the General Assembly for the management compensation is not enough to cover the remuneration of newly appointed member.
The General Assembly does not vote on the additional amount used.

Section 9 compensation prohibited art. 20 compensation prohibited in society the payment of allowances to members of the Board of Directors, management and the Advisory Board shall: 1. contractually agreed severance and those provided for by the Statute; payments due until the end of the contractual relationship (art. 12, para. 1, ch. 2) are not considered compensation of departure; 2. allowances early; 3. provisions for the transfer or the recovery of the whole or a part of a company by the company or by companies that are controlled directly or indirectly by the company; 4. loans, credits, pension benefits outside the occupational and compensation related to the results, when they are not provided in the statutes; 5. equity, rights of conversion and option rights, when they are not provided in the statutes.

Art. 21 compensation prohibited in the group is not allowed compensation paying activities of members of the Board of Directors, management and the Advisory Council in companies that are controlled directly or indirectly by the company: 1. where the payment of those allowances would be also forbidden if they were paid directly by the company; 2. When they are not provided for in the statutes of the company; 3. When they have not been approved by the General Assembly.

Section 10 requirement to vote and report pension institutions art. 22 duty to vote for pension funds subject to the law of 17 December 1993 on free passage (FZG) exercise, at the general meeting, the voting rights attaching to shares they hold, when it comes to proposals announced concerning the following points: 1. the election of the members of the Board of Directors, the President of the Board of Directors, members of the Committee and remuneration of the independent representative (art. 3 4, 7 and 8); 2. the statutory provisions under art. 12; 3. the votes according to the art. 18 and 21, ch. 3.

They vote in the interest of the insured.
They abstain assuming it is in the interest of the insured.
The interest of the insured is met when the vote ensures sustainable prosperity of the Pension Fund. The supreme body of the institution sets out the principles which specify the interest of policyholders in relation to the exercise of the right to vote.

RS 831.42 art. 23 obligation to communicate (art. 86b of the Federal ACT of 25 June 1982 on the occupational old-age, survivors and disability) pension institutions submitted to the FZG inform their policyholders once annually at least in a synthetic report of the way in which they have fulfilled their obligation to vote according to art. 22 when pension funds do not follow the proposals of the Board of directors or abstain, they must communicate it in detail.

RS 831.40 RS 831.42 Section 11 provisions criminal art. 24 criminal liability of the members of the Board of Directors, management and Advisory Board is punished with a custodial sentence of more than three years and a monetary penalty anyone who, knowingly, as a member of the Board of Directors, management or Advisory Council, receives or grants a remuneration by virtue of art. 20, ch. 1 to 3, or art. 21, ch. 1, in relation to art. 20, ch. 1-3.
Will be punished with a custodial sentence of more than three years or a monetary penalty anyone who, knowingly, as a member of the Board of Directors: 1. delegate all or part of the management to a legal person, in contradiction with art. 6; 2. implements a representation by a member of an organ of the company or a depositary (article 11); or 3. prevents: a. General Assembly elect annually and individually the members and the Chairman of the Board of Directors, the members of the Compensation Committee and the independent representative (art. 3, 4, 7 and 8), (b) the General Assembly to vote on remuneration as the Board of Directors has set for himself, for the management and the Advisory Council (art. 18), c. shareholders to give the powers and give instructions to the independent representative by electronic means (art. 9 al. 1, c. 3), d. the statutes contain provisions referred to in art. 12, al. 1, Nos. 1 and 2.


For the calculation of the penalty, the judge is not bound by the maximum amount of the fine day referred to in art. 34, al. 2, 1 sentence, of the penal code; However, the capitalized amount of the financial penalty cannot exceed six times the annual remuneration agreed upon at the time of the Act with the company concerned.

RS 311.0 art. 25 criminal liability in the field of pension funds all the supreme body member or any person responsible for the management of a pension fund subject to the FZG who knowingly violates the duty to vote according to art. 22 or the obligation to report according to art. 23 is punishable by a monetary penalty of 180 days-fine at most.

RS 831.42 Section 12 provisions transitional art. 26 applicable law: in general the art. 1 to 4 of the final title of the civil code apply to this order, subject to the following provisions.
This order applies from its entry into force to all existing corporations.

SR 210 art. 27 adaptation of statutes and regulations statutes and regulations which do not conform to this order must be adjusted no later than at the second annual general meeting following the entry into force of this order.
Pension institutions submitted to the FZG adapt their regulations and their organization to the art. 22 and 23 in the period of one year from the entry into force of this order.

RS 831.42 art. 28 adaptation of labour contracts concluded under the old law employment contracts existing at the time of the entry into force of this order must fit within the period of two years from that date. After this period, this order is applicable to all contracts of work.

Art. 29 Election of the Board of Directors and Compensation Committee art. 3, 4 and 7 shall apply from the first annual general meeting after the entry into force of this order.
The Board of Directors determines the principles governing the tasks and competences of the Compensation Committee for the period up to the adaptation of the statutes (art. 12, para. 1, ch. 3).

Art. 30 independent representative if the independent representative has not already elected by the General Assembly, the Board of Directors appoints him to the first General Assembly which is held after the entry into force of this order.
Granting of powers and instructions to the independent representative electronically must be possible at least for the second annual general meeting following the entry into force of this order.

Art. 31 compensation report and vote of the General Assembly on remunerations the remuneration report provisions apply to the annual exercise that starts simultaneously with the entry into force of this order or later.
The provisions concerning the vote of the General Assembly on the remuneration of the Board of Directors, management and the Advisory Board shall apply at the second annual general meeting following the entry into force of this order.
The Board of Directors sets the terms of General Assembly voting (art. 12, para. 1, c. 4) if they are not already addressed in the articles at the second annual general meeting following the entry into force of this order.

Art. 32 vote and obligation to communicate the pension institutions submitted to the FZG exercise their voting rights and communicate what they have voted at the latest on the first day of the calendar year that begins after the entry into force of this order.

RS 831.42 Section 13 entry into force art. 33. this order comes into force on January 1, 2014.

RO 2013 4403 RS 101 State on January 1, 2014

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