2. Capital Structure

2.1 Capital

As at 31 December 2016, 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. In addition, as at the balance sheet date Implenia Ltd. has conditional capital of CHF 3,768,288 and authorised capital of 3,768,288 francs. Based on this conditional and authorised capital, share capital could be increased in line with the criteria set out in Art. 3a and 3b of the Articles of Association of 24 March 2015 (hereinafter “Articles of Association”) by a total of CHF 4,710,360.

2.2 Conditional and authorised capital in particular

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

The share capital can be increased by a maximum of CHF 3,768,288 by issuing a maximum of 3,694,400 fully paid-up registered shares with a par value of CHF 1.02 each by exercising conversion and/or option rights issued in conjunction with bonds or other financial market instruments of the Company or one of its Group companies. If bonds or other financial market instruments carrying conversion and/or option rights are issued, shareholders’ subscription rights are excluded. The current owners of conversion and/or option rights are entitled to subscribe to the new shares. The conversion and/or option conditions are determined by the Board of Directors (Art. 3b Para. 1 of the Articles of Association).

When issuing bonds or other financial market instruments carrying conversion and/or option rights, the Board of Directors is authorised to restrict or cancel the pre-emptive subscription rights of the shareholders if the shares are issued to finance or re-finance the acquisition of other companies or parts of companies or to invest in other companies, or in new investment projects, or to refinance issued bonds or other financial market instruments or for the purpose of issuance on national or international markets.

If pre-emptive subscription rights are cancelled by the Board of Directors, the following applies: the bonds or other financial market instruments are floated at market conditions (including the dilution clauses standard to the market) and new shares are issued in accordance with the prevailing conversion and option conditions. Conversion rights may be exercised for a maximum period of 15 years and option rights for a maximum period of 10 years from the relevant issue date. The conversion or option price and its method of calculation are determined at market conditions, with the stock exchange price applying to the shares of the Company (Art. 3b Para. 3 of the Articles of Association). The acquisition of shares through the exercise of conversion and/or option rights and every subsequent transfer are subject to the restrictions of Art. 7 of the Articles of Association (Art. 3b Para. 2 of the Articles of Association).

If the Board of Directors exercises its right to create share capital pursuant to Art. 3a (authorised share capital; see explanation below), the Board of Directors will no longer be entitled to exercise its right in this respect to issue bonds or other financial market instruments pursuant to Art. 3b of the Articles of Association (conditional share capital), since share capital pursuant to Art. 3a of the Articles of Association (authorised share capital) and Art. 3b of the Articles of Association (conditional share capital) together may only be increased by a maximum of CHF 4,710,360 (Art. 3b, Para. 710 of the Articles of Association).

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

The Board of Directors is authorised to increase the share capital at any time up to 26 March 2017 by CHF 3,768,288 by issuing a maximum of 3,694,400 fully paid-up registered shares with a par value of CHF 1.02 each. The share capital may be increased by partial amounts (Art. 3a, Para. 1 of the Articles of Association).

The Board of Directors determines the issue date, issue price, type of contribution, conditions for the exercise of subscription rights and the date for the beginning of dividend entitlement. The Board of Directors may issue new shares by way of a firm underwriting by a banking institution or consortium and a subsequent offer to the current shareholders. The Board of Directors may allow subscription rights that are not exercised to expire or place shares for which subscription rights were granted but not exercised with the public at market conditions (Art. 3a Para. 3 of the Articles of Association).

The Board of Directors is authorised to restrict or cancel the subscription rights of shareholders and allot the shares to third parties if the shares are issued for the purpose of the acquisition of companies or parts of companies or investments in other companies or to finance or re-finance such transactions (Art. 3a Para. 4 of the Articles of Association).

The subscription and acquisition of the new shares and every subsequent share transfer are subject to the restrictions of Art. 7 of the Articles of Association (Art. 3a Para. 2 of the Articles of Association).

If the Board of Directors exercises its right to issue bonds or other financial market instruments pursuant to Art. 3b of the Articles of Association (conditional share capital), the Board of Directors will no longer be entitled to exercise its right in this respect to create share capital pursuant to Art. 3a of the Articles of Association (authorised share capital) for the same amount, since share capital pursuant to Art. 3a (authorised share capital) and Art. 3b (conditional share capital) together may be raised only by a maximum of CHF 4,710,360 (Art. 3a Para. 5 of the Articles of Association).

2.3 Changes in capital over the last three financial years

On 25 March 2014 the Annual General Meeting of Shareholders decided to decrease the share capital by reducing the nominal value of each share from CHF 1.90 to CHF 1.02. The reduction amount of CHF 0.88 per share was used to repay shareholders. As part of this capital decrease, the Annual General Meeting of Shareholders also decided to adjust the nominal value of the maximum amount of conditional capital at the time.

On 24 March 2015, the Annual General Meeting of Shareholders decided to create authorised and conditional capital in accordance with the conditions described under 2.2 above. The Annual General Meeting of Shareholders also decided to cancel the existing conditional capital (Art. 3a of the Articles of Association at that time). There were no capital increases from the newly created conditional or authorised share capital during the year under review.

On 30 June 2015, Implenia Ltd. issued a subordinated convertible bond worth CHF 175,000,000 (abbreviation: 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 0.5%. The conversion price is CHF 75.06. The shares to be delivered as a result of conversion will be made available by providing new shares from conditional capital. There was no conversion during the year under review.

2.4 Shares and participation certificates

As at 31 December 2016, the share capital is divided into 18,472,000 fully paid-up registered shares with a par value of CHF 1.02 each. Each share entitles the holder to one vote at the General Meeting of Shareholders and to dividends. There are no voting right shares or other shares with similar advantages. Neither are there any participation certificates.

2.5 Dividend-right certificates

There are no dividend-right certificates.

2.6 Limitations on transferability and nominee registrations

2.6.1 Percentage clause

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. 4b of the Articles of Association, the Board of Directors can refuse to enter an owner of registered shares as a shareholder with voting rights in the Share Register if 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. 

The Implenia Group is active in project development and real estate business. Consequently, the corporation 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 this article 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”). The Registration Regulations can be found on the Implenia website.
http://www.implenia.com/en/investor-relations/shares/regulations.html

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

i.    the foreign shareholder meets the conditions that apply to all shareholders (points 2 to 4 of the Registration Regulations)
ii.    total foreign-owned shares entered with voting rights in the Share Register (including the shares of the foreign shareholder concerned) do not account for more than 20% of all shares entered with voting rights in the Share Register, and
iii.    the number of shares entered with voting rights in the Share Register that are held by the foreign shareholder concerned does not exceed 10% of all shares entered with voting rights in the Share Register.

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 of the Federal Law on the Acquisition of Real Estate by Persons Abroad (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 requests for exceptions were received during the year under review. No exceptions were granted.

2.6.3 Admissibility of nominee registrations

According to point 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. 4a of the Articles of Association, nominees will be entered 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 can be read in the Articles of Association.
http://www.implenia.com/en/about-us/corporate-governance/articles-of-association.html

Pursuant to point 4 of the Registration Regulations, the Board of Directors will enter 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 can be found in the Registration Regulations.
http://www.implenia.com/en/investor-relations/shares/regulations.html

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/en/investor-relations/shares/regulations.html

2.6.4 Procedure and conditions for cancelling privileges granted under the Articles of Association and limitations on transferability

There are no privileges under the Articles of Association. 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 nominal value of shares represented at the meeting (Art. 16 Para. 1c 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 (abbreviation: 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 0.5%. 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.