Articles of association

Articles of Association of DDM Holding AG with registered office in Baar, Zug, Switzerland.

 

I. Firm Name, Duration, Registered Office and Purpose of the Company

Art. 1: Firm Name, Duration and Registered Office

Under the name of DDM Holding AG (DDM Holding Ltd) (DDM Holding SA) exists for an indefinite period of time a company pursuant to art. 620 et. seq. of the Swiss Code of Obligations (CO) with its registered office in Baar, Zug.

Art. 2: Purpose

The purpose of the corporation is the purchase, sale and maintenance of participations in other companies, their administration and financing.

The corporation may establish subsidiaries and branch offices in Switzerland and abroad and carry out all legal transactions required by its business purpose or which may be appropriate to promote its development or the development of the group.

Further, the corporation may directly or indirectly participate in group finance transactions, in particular by providing its direct or indirect shareholders or other group companies loans or by providing security in the form of guarantees, sureties or any other security interest to third parties even if these loans or security interests, which may be provided without charge or fee, lie in the exclusive interest of its direct or indirect shareholders or other group companies.

II. Share Capital, Shareholder Status, Shares, Transfer of Shares

Art. 3: Share Capital

The share capital of the company amounts to CHF 9,040,298 and is divided into 9,040,298 registered shares with a nominal value of CHF 1 each. All shares are fully paid-in.

Art. 3a: Authorised Capital

The board of directors is authorised to increase the share capital in the maximum amount of CHF 1,609,702 by issuing at most 1,609,702 fully paid in registered shares with a nominal value of CHF 1 each any time until May 27, 2017.

The board of directors is entitled to restrict or withdraw the pre-emptive rights of the shareholders and to allocate them to third persons, if the new shares are used for (1) the take over of enterprises, parts of enterprises or participations by exchange of shares or the financing or refinancing of the acquisition of enterprises, parts of enterprises or of new investment projects or (2) the participation of strategic partners and investors or (3) the rapid and flexible raising of equity capital by such a placement that cannot be implemented without difficulties by granting the pre-emptive rights. In addition, the board of directors is entitled to restrict or withdraw the pre-emptive rights of the shareholders and to allocate them to third persons, if the new shares are used for the debt-equity swap with lenders. The Board of Directors is authorized to assign pre-emptive rights that have not been exercised at its sole discretion.

An increase by way of partial increases is permitted. The respective amount of the issue, the beginning of the dividend entitlement and the type of the contribution will be determined by the board of directors. All new shares are subject to the restrictions on registration pursuant to art. 4 of these Articles of Association.

Art. 3b: Conditional Capital

The share capital may be increased in an amount not to exceed CHF 500,000 through the issuance of up to 500,000 fully paid registered shares with a nominal value of CHF 1 each by the issuance of new shares to employees and directors of the Company and group companies. The pre-emptive rights and advance subscription rights of the shareholders of the Company shall thereby be excluded. The shares or options to acquire shares shall be issued to employees and directors pursuant to one or more regulations to be issued by the Board of Directors, taking into account performance, functions, levels of responsibility and profitability criteria. The shares or options to acquire shares may be issued to employees and directors at a price lower than the market price.

The acquisition of shares within the context of employee and director share ownership and each subsequent transfer of the shares shall be subject to the restrictions of Article 4 of these Articles of Association.

Art. 4: Shareholders

The company shall recognize only one owner for each share. The company shall keep a share register that records the issued shares and the names and addresses of the owners and other beneficiaries in rem.

Any entry as a shareholder in the share register requires proof of acquisition of the registered share or the creation of usefruct.

Acquirers of registered shares shall be registered upon request in the share register as shareholders with the right to vote, provided that they expressly declare that they acquired the registered shares in their own name and for their own account.

The Board of Directors may record persons not expressly declaring in their registration application that they hold the shares for their own account (the “Nominees”) as shareholders with voting rights in the share register for up to 3% of the share capital entered in the commercial register. Beyond this limit, the Board of Directors may record Nominees as shareholders with voting rights in the share register provided any such Nominee discloses the names, addresses and shareholdings of the persons for account of whom it is holding 0.5% or more of the share capital entered in the commercial register and provided any such Nominee has entered into an agreement with the Board of Directors regarding its situation.

The restrictions as set out in this article also apply to shares acquired by way of exercising pre-emptive, option or convertible rights.

After hearing the registered shareholder or Nominee, the Board of Directors may cancel registrations in the share register, retroactive to the date of registration, if such registrations were made based on incorrect information. The relevant shareholder or Nominee shall be informed immediately as to the cancellation.

The Board of Directors shall regulate the details and issue the instructions necessary for compliance with the preceding provisions. In special cases, it may grant exemptions from the rule concerning nominees.

In case of a change of its address, the shareholder shall notify the company. Until the company has received a respective notice all notifications to the shareholder shall deemed to have been validly delivered when delivered to the address provided for in the shareholders’ register.

The Board of Directors has the right, thirty days prior to a shareholders’ meeting until the day following the shareholders’ meeting, to refrain from any entry into the share register.

Only a person registered in the share register is deemed to be shareholder of the company.

Notwithstanding the above, the Company’s shares may be registered in a securities register in accordance with the Swedish Financial Instruments Accounts Act (1998:1479).

Art. 5: Shares and Transfer of Shares

The shares of the company are (subject to paragraph 2) issued as uncertificated securities and as intermediated securities.

The shareholder may at any time and without any charge call upon the company to issue a written confirmation for his/her shares. The shareholder, however, is not entitled to demand the printing and delivery of securities. The company may, at its own discretion, convert uncertificated securities into securities (individual share certificates or global certificates whether or not deposited with an intermediary) and withdraw shares issued as intermediated securities from the custodian system.

Transfers of intermediated securities are effected exclusively according to the Federal Law on Intermediated Securities. To the extent allowed by law, transfers by assignment are excluded.

The shareholders’ meeting may, at any time, convert registered shares into bearer shares and vice versa.

Notwithstanding the above, the Company’s shares may be registered in a securities register in accordance with the Swedish Financial Instruments Accounts Act (1998:1479).

The proprietary rights of the shareholders whose shares are registered in a securities register in accordance with the Swedish Financial Instruments Accounts Act (1998:1479) shall be determined in accordance with Swedish law. Such shares shall be transferred in accordance with this act and shall be pledged in accordance with Swedish law.

III. Corporate Bodies

Art. 6: General

The governing bodies of the company are:

a. The shareholders’ meeting

b. The Board of Directors

c. The auditors

A. The Shareholders’ Meeting

Art. 7: Powers

The shareholders’ meeting has the following powers:

a. to adopt and amend the Articles of Association;

b. to appoint the members of the Board of Directors and the auditors;

c. to approve the annual report and, to the extent legally required, the consolidated financial statements;

d. to approve the annual financial statements and, after acceptance of the auditors’ report, to decide on the use of the balance sheet profit;

e. to release the members of the Board of Directors;

f. to decide on all matters which are in its competence by law or pursuant to the Articles of Association, or which have been presented to it by the Board of Directors.

Art. 8: Ordinary and Extraordinary Shareholders’ Meetings

The ordinary shareholders’ meeting shall be held annually within six months after the closing of the business year. Extraordinary shareholders’ meetings shall be convened as needed.

They shall be convened by resolution of the shareholders’ meeting or the Board of Directors, at the request of the auditors, or at the request of one or more shareholders representing at least one-tenth of the share capital by submitting a written request to the Board of Directors specifying the matters on the agenda and the proposals.

Art. 9: Calling of Shareholders’ Meetings

Notice regarding the shareholders’ meeting shall be given by the Board of Directors, or if necessary by the auditors, at least twenty days before the day of the meeting in the publication vehicles of the company or by mail to the addresses of the shareholders recorded in the share register.

The notice shall contain the following information:

a. Place and time of the meeting;

b. Matters put on the agenda by the Board of Directors and the proposal of the Board of Directors relating to these matters;

c. Matters requested to be put on the agenda by shareholders to the extent permitted by law or the Articles of Association and the proposal of the shareholders relating to such matters;

d. Type of proof requested in connection with the possession of shares;
e. For the ordinary shareholders’ meeting also the statement that the annual report and the auditors’ report are kept at the registered office of the company for inspection by the shareholders.

 With the exemption of lit. e, sec. 2 above is also applicable for extraordinary shareholder’s meetings.

Art. 10: Requests to Put Matters on the Agenda

The agenda shall also contain such matters and proposals by shareholders holding shares of at least 10% of the registered share capital which were submitted to the Board of Directors in writing not later than 45 days before the day of the shareholders’ meeting.

Proposals regarding matters not duly announced may be discussed upon resolution of the shareholders’ meeting. A resolution, however, may only be passed at the next shareholders’ meeting with the exception of proposals requesting that an extraordinary shareholders’ meeting be held or a special audit be made.

Within the scope of the matters on the agenda, proposals can be made without prior notice.

Art. 11: Meeting of all Shareholders

The owners, usufructuaries or representatives of all shares may, if no objection is raised, hold a shareholders’ meeting without complying with the rules regarding notice. A meeting convened in this manner may pass valid resolutions on all matters within the power of the shareholders’ meeting provided the owners, usufructuaries and representatives of all the shares are present.

Art. 12: Membership and Voting Rights, Representation and Attendance

Membership rights can be exercised by persons who are recorded in the share register or, if the shares are listed in Sweden, in the central securities depositary in accordance with chapter 1, paragraph 10 of the Swedish Companies Act (Sw. Aktiebolagslagen (2005:551)) on the record date prior to the shareholders’ meeting.

Subject to Art. 4, each share is entitled to one vote in the shareholders’ meeting. Persons who have in one way or another participated in the management of the company have no right to vote with regard to resolutions concerning the discharge of the Board of Directors.

A shareholder may, by a written proxy, be represented at the shareholders’ meeting by a person who need not be shareholder. The Board of Directors shall decide on the validity of the proxy.

Members of the Board of Directors are entitled to attend the shareholders’ meeting and make proposals.

Art. 13: The Shareholders’ Meeting

The shareholders’ meeting is chaired by the Chairman of the Board of Directors. If the Chairman of the Board of Directors is unable, the shareholders’ meeting shall appoint a Chairman.

The Chairman appoints the required vote tellers and a Secretary, who need not be shareholders or shareholders’ representatives.

The Chairman takes all actions necessary to direct the discussions.

Art. 14: Minutes

Minutes of the discussion shall be prepared and signed by the Chairman and the Secretary. The minutes shall record:

a. The number, type, nominal value and class of shares represented by the shareholders, the executives, the independent shareholder representatives and the depository representatives;

b. Resolutions and elections;

c. Requests for information and the answers given thereto;

d. Shareholders’ statements requested to be recorded in the minutes.

Art. 15: Passing of Resolutions

Resolutions are passed and elections are carried out by the shareholders’ meeting with a simple majority of the votes validly cast, subject to the provisions of art. 704 Sec. 1 and 2 CO. Abstentions are not counted as votes validly cast. In elections with several candidates the candidate receiving the most votes shall be elected.

Voting and elections shall take place openly unless the Chairman orders otherwise or one or more shareholders, together representing at least 5% of the represented shares, request a secret ballot.

B. The Board of Directors

Art. 16: Eligibility and Term of Office

The Board of Directors shall consist of one or more members. The members of the Board of Directors are elected for a term of one year until and including the next ordinary shareholders’ meeting. Re-election is permitted. The term of office of a member of the Board of Directors will, however, end irrevocably on the date of the Annual General Meeting following the 70th birthday of the particular member of the Board of Directors.

Art. 17: Organisation

The Board of Directors shall constitute itself. It shall choose a Chairman, a Vice Chairman and a Secretary. The Secretary need not be a member of the Board of Directors.

The Board of Directors may appoint standing or ad hoc committees entrusted with the preparation and/or execution of its decisions or the supervision of specific parts of the business.

Art. 18: Duties

The Board of Directors shall decide in all matters not reserved to the shareholders’ meeting by law or the Articles of Association.

Art. 19: Management and Delegation

The Board of Directors shall jointly manage the business of the company to the extent the management has not been validly delegated.

The Board of Directors may, except as reserved under art. 716a CO, delegate the management in whole or in part, pursuant to business rules it shall adopt, to one or more members of the Board of Directors or to third persons.

The business rules shall define the management of the company, determine the positions necessary for such management, define its duties and determine the reporting requirements.

Art. 20: Representation of the Company

The Board of Directors represents the company to the outside. If not decided otherwise by the Board of Directors, all the members of the Board of Directors together have the right to represent the company. Within the limits of the law and the Articles of Association it can transfer representation to one or more members of the Board of Directors (managing directors) or to third parties (officers).

Art. 21: Calling of Meetings

Meetings of the Board of Directors shall be called by the Chairman and, if the Chairman is unable, by the Secretary as often as required by the business. A member of the Board of Directors can request the Chairman to call a meeting immediately upon giving him/her the reasons therefore.

Notices regarding the meetings shall be sent a reasonable time in advance and shall indicate the matters on the agenda.

Art. 22: Passing of Resolutions during Meetings of the Board of Directors

Subject to art. 23, resolutions and elections of the Board of Directors shall be passed and carried out in meetings by the majority of the votes cast. The chairman shall have the casting vote.

The Board of Directors can validly pass resolutions if a majority of its members is present at the meeting with the exception of resolutions in connection with capital increases, where no minimum presence requirement applies.

Art. 23: Resolutions by Way of Circulation

Resolutions can be passed and elections carried out without holding a meeting of the Board of Directors by obtaining the written consent of the board members to a given proposal (i.e. by letter, fax or electronic mail), provided that no member requests oral deliberation.

Circular resolutions are adopted by the majority of all members of the Board of Directors. The chairman shall be responsible for the procedure adopting circular resolutions.

Art. 24: Minutes

The Secretary of the Board of Directors shall prepare the minutes of the deliberations and resolutions of the Board of Directors. The minutes shall be signed by the Secretary and the Chairman.

Art. 25: Compensation

The members of the Board of Directors shall receive the compensation fixed by the Board of Directors in accordance with their involvement and responsibility.

C. The Auditors

Art. 26: Election, Term of Office and Nature of Audit

The shareholders’ meeting shall elect one or more auditors for each business year. The Board of Directors shall propose such auditors for election, who meet the legal qualifications. The term of the auditors ends with the shareholders’ meeting during which the report for the corresponding business year is presented. Re-election is possible.

Art. 27: Duties

The auditors assess whether the accounting, the financial statements and, if applicable, the consolidated financial statements comply with law, the Articles of Association and, if applicable, the chosen accounting standards. Further, the auditors assess whether the proposal of the Board of Directors to allocate the accumulated profits complies with the law and the Articles of Association and whether an internal control system exists. The auditors also have such other duties as set forth by law and the Articles of Association.

The management of the company by the Board of Directors is not object of the auditors’ assessment.

Art. 28: Reporting

The auditors shall provide to the Board of Directors a comprehensive report reflecting the findings regarding the accounting, the internal control system and the conduct and result of the audit.

Pursuant to the applicable legal provisions, the auditors shall provide to the shareholders’ meeting a written report regarding the result of their audit. The auditors shall recommend approval, with or without qualifications, or rejection of the annual financial statements.

By unanimous resolution, the shareholders’ meeting approving the annual financial statements may waive the presence of the auditors.

IV. Business Year, Business Report and Allocation of Profits

Art. 29: Business Year

The business year shall end on such date as determined by the Board of Directors.

Art. 30: Business Report

Each business year the Board of Directors shall prepare a business report which shall consist of the annual financial statements, the annual report and, where required, the consolidated financial statements.

Art. 31: Allocation of Profits

The shareholders’ meeting shall dispose of the balance sheet profit within the limits of law.

V. Termination

Art. 32: Dissolution

The shareholders’ meeting can at any time decide to liquidate the company.

If the dissolution of the company and its liquidation is resolved, the liquidation shall be executed by the Board of Directors or one or more liquidators elected by the shareholders’ meeting.

Art. 33: Liquidation

If the dissolution of the company and its liquidation is resolved, the liquidation shall be executed by the Board of Directors or one or more liquidators elected by the shareholders’ meeting.

VI. Official Announcements

Art. 34: Means of Publication

Official announcements of the company shall be published in the Swiss Commercial Gazette. The Board of Directors may determine additional publication vehicles.

The German version of these Articles of Association shall prevail.

Baar, 27 May 2016