2. Capital Structure

2.1 Capital

As at 31 December 2018, Implenia Ltd.’s share capital amounts to CHF 18,841,440, divided into 18,472,000 registered shares with a par value of CHF 1.02 each. The shares are fully paid up. As at the balance sheet date, Implenia Ltd. also had conditional capital of CHF 3,768,288. Based on this conditional capital, the share capital can be increased in line with the criteria set out in Art. 3b of the Articles of Association by a total of CHF 3,768,288.

2.2 Conditional and authorised capital in particular

Conditional capital (Art. 3b of the Articles of Association) 

Conditional capital amounts to a maximum of CHF 3,768,288, or 20% of existing share capital. An increase from conditional capital would be effected by issuing a maximum of 3,694,400 fully paid-up registered shares with a par value of CHF 1.02 each through the exercise of conversion and / or option rights issued in conjunction with bonds or other financial market instruments of Implenia Ltd. or one of its Group companies. If bonds or other financial market instruments carrying conversion and/or option rights are issued, the shareholders do not have a subscription right. The current owners of conversion and/or option rights are entitled to subscribe to new shares. The conversion and / or option conditions will be determined by the Board of Directors (Art. 3b para. 1 of the Articles of Association).

There was no increase from conditional capital during the year under review, i.e. no conversion and / or option rights were exercised in connection with the convertible bonds issued on 30 June 2015 (see section 2.7 below). More information on conversion and / or option rights and the terms and conditions that apply to them can be found in Art. 3b of the Articles of Association.
http://www.implenia.com/goto/corporategovernance/2018/en/Articles-of-Association-20180327.pdf

Authorised capital (Art. 3a of the Articles of Association) 

The company has no authorised capital.

2.3 Changes in capital over the last three financial years

Share capital remained unchanged in the years between 2016 and 2018. During this period Implenia Ltd.’s equity changed as follows:

Changes in capital over the last three years

 

31.12.2018

31.12.2017

31.12.2016

 

1000 CHF

1000 CHF

1000 CHF

    

Share capital

18,841

18,841

18,841

Statutory capital reserves

   

– Reserves from capital contributions

132

132

132

Statutory retained earnings

16,185

16,185

16,185

Retained earnings

   

– Profit carried forward

310,147

284,556

278,214

– Profit for the year

64,025

62,210

42,955

Treasury shares

(4,468)

(14,090)

(5,498)

Total equity

404,862

367,834

350,829

For more information on changes in capital during the 2016 and 2017 reporting periods, please refer to the relevant annual reports.

https://annualreport.implenia.com/en/gb2017/home.html
http://annualreports1316.implenia.com/en/gb2016/home.html

2.4 Shares and participation certificates

As at 31 December 2018, the share capital is divided into 18,472,000 fully paid-up registered shares with a par value of CHF 1.02 each. Subject to the provisions of Art. 7 of the Articles of Association, each share gives the right to one vote. There are no voting right shares or other shares with preferential rights. All registered shares rank for dividends apart from shares held by Implenia Ltd. itself.
http://www.implenia.com/goto/corporategovernance/2018/en/Articles-of-Association-20180327.pdf

Implenia Ltd. has not issued any participation certificates.

2.5 Dividend-right certificates

Implenia Ltd. has not issued any dividend-right certificates.

2.6 Restrictions on transferability and nominee registrations

2.6.1 Restrictions on transferability

There is no statutory percentage clause which would allow any limitation of transferability of Implenia Ltd.’s shares pursuant to Art. 685d para. 1 Swiss Code of Obligations. Pursuant to Art. 7 para. 4 lit. a and lit. b of the Articles of Association, the Board of Directors can refuse to register an owner of registered shares as a shareholder with voting rights in the Share Register if (i) this owner does not provide evidence on Implenia Ltd.’s request that it acquired and holds the shares in its own name and on its own account (Art. 7 para. 4 lit. a of the Articles of Association), or (ii) information available to Implenia Ltd. indicates that recognition of this owner as a shareholder would or could prevent Implenia Ltd. and/or its subsidiaries from providing the legally required evidence about the composition of its shareholder body and / or the beneficial owners of the shares (Art. 7 para. 4 lit. b of the Articles of Association).

Because Implenia Group is active in project development and real estate business, Implenia Ltd. is specifically entitled to refuse to register persons abroad (pursuant to the Federal Law on the Acquisition of Real Estate by Persons Abroad, BewG), if this could raise any doubt about the Swiss control of the company and / or its subsidiaries.

The details of how Art. 7 para. 4 lit. b of the Articles of Association is implemented are set out in the Regulation on Registration of Registered Shares and Keeping of the Share Register of Implenia Ltd. of 4 February 2013 (“Registration Regulations”).
http://www.implenia.com/goto/corporategovernance/2018/en/Registration-Regulations-20130204.pdf
http://www.implenia.com/goto/corporategovernance/2018/en/Articles-of-Association-20180327.pdf

Section 5 of the Registration Regulations states that the Board of Directors shall register a foreign shareholder in the Share Register as a shareholder with voting rights, provided:

  1. the foreign shareholder meets the conditions that apply to all shareholders (sections 2 to 4 of the Registration Regulations);
  2. the total number of shares held by foreign shareholders that are registered as shareholders with voting rights (including the foreign shareholders applying for registration) does not exceed 20% of the total number of shares held by shareholders that are registered with voting rights; and
  3. the number of shares held by such applying foreign shareholder and registered with voting rights does not exceed 10% of the total of shares of all shareholders registered with voting rights.

Above these limits, foreign shareholders will only be registered if a decision by the competent authorities is presented at Implenia Ltd.’s headquarters to the effect that Implenia Ltd. and its subsidiaries shall not be considered as foreign-controlled even after the new foreign shareholder is entered in the Share Register. Any shareholder falling within the definition of a person living abroad as per Art. 5 BewG in conjunction with Art. 6 BewG shall be considered as a foreign shareholder. Nominees that have not disclosed the shareholders they represent shall also be regarded as foreign shareholders as defined in this clause.

2.6.2 Granting exceptions

No exceptions were granted during the year under review.

2.6.3 Admissibility of nominee registrations

According to section 4 of the Registration Regulations, nominees are persons who do not explicitly declare in their application for registration that they hold the shares for their own account. According to Art. 7 para. 4 lit. a of the Articles of Association, nominees will be registered in the Share Register if they declare in writing that they are prepared to disclose the names, addresses and shareholdings of any persons for whose account they are holding the shares, or if they disclose this information immediately when first requested. The precise wording of this rule can be read in the Articles of Association.
http://www.implenia.com/goto/corporategovernance/2018/en/Articles-of-Association-20180327.pdf

Pursuant to section 4 of the Registration Regulations, the Board of Directors will register nomi­nees in the Share Register as shareholders with voting rights up to an acknowledged percentage of 1% of the total share capital entered in the commercial register, as long as the nominees declare in writing that they are prepared to disclose the names, addresses and shareholdings of any person for whose account they are holding the shares and provided they immediately disclose this information in writing on first request. The nominee must have concluded agreements with the Board of Directors regarding its position. Registered shares held by a nominee will only be entered in the Share Register with voting rights above this 1% limit if the nominee concerned discloses the names, addresses, place of residence or domicile and shareholdings of any person for whose account they are holding 0.25% or more of the share capital entered in the Commercial Register.

Further information about this can be found in the Registration Regulations.
http://www.implenia.com/goto/corporategovernance/2018/en/Registration-Regulations-20130204.pdf

Registration as a nominee requires the nominee to have made a legally valid application in accordance with the appendix to the Registration Regulations (Application for Registration as Nominee). The relevant form is on the Implenia website.
http://www.implenia.com/goto/corporategovernance/2018/en/Application-for-Registration-­Nominees.pdf

2.6.4 Procedure and conditions for cancelling privileges and restrictions on transferability laid down in the Articles of Association

The Articles of Association grant no privileges. Cancellation of transferability restrictions requires a resolution by the General Meeting adopted by at least two thirds of the votes represented at the meeting and an absolute majority of the par value of shares represented at the meeting (Art. 16 para. 1 lit. c of the Articles of Association).

2.7 Convertible bonds and options

On 30 June 2015, Implenia Ltd. issued a subordinated convertible bond worth CHF 175,000,000 (Valor symbol: IMP15, ISIN: CH0285509359). This convertible bond is due for repayment on 30 June 2022 provided it is not redeemed, converted, bought back or cancelled before then. The convertible bond has an annual coupon of 0.500%. The conversion price is CHF 75.06. The convertible bond will be convertible into around 2.33 million shares of Implenia Ltd., which is equivalent to around 12.6% of currently outstanding shares. The shares to be delivered as a result of conversion will be made available by providing new shares from conditional capital. There are no other outstanding convertible bonds or options.