ARTICLES OF INCORPORATION

Transcription

1 ARTICLES OF INCORPORATION of Myriad Group AG with registered office in Zürich I. CORPORATE NAME, REGISTERED OFFICE, DURATION AND PURPOSE OF THE CORPORATION 1 Corporate Name, Registered Office, Duration Under the name of Myriad Group AG (Myriad Group SA) (Myriad Group Ltd.) there exists a corporation in accordance with Art. 620 et seq. Swiss Code of Obligations (CO) with unlimited duration having its registered office in Zürich. 2 Purpose The principal purpose of the Company is the acquisition, holding and administration of shareholding interest in other companies in Switzerland and abroad. The purpose of the Company is to develop, market, distribute and support software solutions for mobile communication and related applications in the area of information technology world-wide. The Company may establish branch offices and subsidiaries and may acquire, hold and administrate shareholding interests in other

2 companies in Switzerland and abroad. It may acquire, hold, administrate and sell real estate and intellectual property rights. In addition, the Company may carry out all commercial and financial transactions that favor its purpose. II. SHARE CAPITAL 3 Share Capital, Shares The share capital shall amount to CHF 11'050' divided into 110'500'047 registered shares with a par value of CHF 0.10 each. The share capital is fully paid in. Registered shares may be converted into bearer shares and bearer shares into registered shares by way of resolution of the General Meeting of the Shareholders. A party acquiring shares of the company is not obliged to make a public offer pursuant to Articles 135 and 163 of the Swiss Financial Market Infrastructure Act (FinfraG). 3a Conditional Share Capital The share capital shall be increased through the issuance of a maximum of 10'785'283 registered shares, each fully paid in, with a par value of CHF 0.10 each, in the maximum aggregate amount of CHF 1'078' by exercise of option rights which are granted to the members of the Board of Directors and employees of the Company and its subsidiaries as well as to members of the Advisory Board according to one or several employee share option plans as approved by the Board of Directors. The subscription rights (Bezugsrecht) of the shareholders with respect to these shares shall be excluded. Page 2 of 134

3 4 Share Register The Company shall maintain a share register in which the name, address and domicile (for legal entities registered office) of the owners and usufructuaries of registered shares shall be recorded. The person recorded in the share register shall be deemed to be the shareholder or usufructuary in relation to the Company. The Company only recognizes one shareholder or usufructuary per share. Acquirers of shares are, upon request and presentation of evidence of the transfer, registered as shareholder with voting right in the share register. The Board of Directors has the power to delete, after having heard the shareholder concerned, entries in the share register retroactively as of the date of the entry if the registration has been made on the basis of false information. The shareholder concerned shall be informed about the deletion without delay. 5 Form of Shares Subject to the following provisions the registered shares of the Company are issued as uncertificated securities (within the meaning of the Swiss Code of Obligations) and intermediated securities (within the meaning of the Swiss Intermediated Securities Act) and may accordingly only be transferred and pledged pursuant to the provisions of the Swiss Intermediated Securities Act. The Company may withdraw registered shares issued as intermediated securities from the relevant custody system. A Shareholder registered in the share registry shall not have the right to request printing and delivery of share certificates, but may request the Company at any time to deliver a written confirmation Page 3 of 134

4 regarding the number of shares for which he is recorded in the share register. The Company may print and deliver certificates for registered shares at any time. Subject to the consent of the respective shareholders, the Company may cancel without replacement previously issued certificates, which are delivered to the Company. III. CORPORATE BODIES OF THE COMPANY 6 Corporate Bodies The corporate bodies of the Company shall be: A) The General Meeting of the Shareholders B) The Board of Directors C) The Auditors A) The General Meeting of the Shareholders 7 Powers The General Meeting of the Shareholders has the following powers: 1. to adopt and amend the Articles of Incorporation; 2. to elect the members of the Board of Directors, the chairman of the Board of Directors, the members of the Compensation and Nomination Committee, the independent proxy and the Auditors; 3. to approve the annual report and the consolidated financial statements; 4. to approve the annual financial statements and to decide upon the appropriation of the net profit shown in the balance sheet; 5. to approve the compensations of the Board of Directors and of the Executive Committee according to Article 23 ff.; Page 4 of 134

5 6. to grant discharge to the members of the Board of Directors and of the Executive Committee; 7. to take decisions on all matters reserved to the General Meeting of the Shareholders by law or under the Articles of incorporation, or which are placed before it by the Board of Directors. 8 Convocation The Annual General Meeting of the Shareholders shall be held every year within six months following the close of the financial year. Extraordinary General Meetings of the Shareholders shall be called by resolution of the Board of Directors or of the General Meeting of the Shareholders or upon request of the Auditors or of shareholders holding at least 10 percent of the share capital in the aggregate. Requests for the calling of a Shareholders' Meeting shall be made in writing and shall specify the business to be transacted and the respective motions. Shareholders who together hold shares with a par value of no less than CHF 1 million may request that an item be put on the agenda of a General Meeting of Shareholders. Such request shall be made in writing, indicating the proposals of the petitioning shareholders, at least 45 days prior to the meeting. The General Meeting of the Shareholders shall be called by the Board of Directors, or, if necessary, by the Auditors. The notice shall be given no less than 20 days before the day of the meeting by publication in the Swiss Official Gazette of Commerce. In addition, the Company may send the convocation for the General Meeting of Shareholders to the shareholders at their addresses registered in the share register of the Company. The notice shall state the agenda as well as the motions of the Board of Directors and of the shareholders who have requested convocation of a General Meeting of Shareholders or who have requested that an item be put on the agenda, if any. Page 5 of 134

6 9 Documents At least 20 days prior to the Annual General Meeting, the business report, the compensation report and the auditors' report shall be made available for inspection at the Company's registered office. Each Shareholder may request that a copy of these documents be sent to him promptly. Shareholders shall be notified hereof by publication in the Swiss Official Gazette of Commerce and in the convocation letter, if any. 10 Voting Rights Each share shall entitle to one vote. The right to vote for registered shares shall require either the registration in the Company's share register or the holding of a written proxy by the shareholder of record. A representation is further possible through the independent proxy. The proxy need not be a shareholder. Statutory representatives do not need a written proxy. Proxies and instructions to the independent proxy can be granted only for the next General Meeting of the Shareholders. The Board of Directors determines the form in which the shareholders may give electronic proxies and instructions to the independent proxy. The General Meeting of the Shareholders shall annually elect the independent proxy for a term of office until the completion of the following General Meeting of the Shareholders. Re-election is possible. 11 Resolutions and Elections Unless provided otherwise by mandatory statutory provisions, the General Meeting of the Shareholders shall pass resolutions and Page 6 of 134

7 shall carry out elections with the absolute majority of the votes represented. Resolutions shall be passed and elections shall be carried out openly, unless the General Meeting of the Shareholders or its chairman resolves to cast votes in writing. The chairman may at any time order to repeat a resolution or an election carried out openly by casting votes in writing or by electronic means if he doubts the result of the vote. In this case, the preceding resolution or election carried out openly is deemed not to have occurred. A resolution of the General Meeting of the Shareholders passed with a majority of at least two thirds of the votes represented and the absolute majority of the par value of shares represented, shall be required for: 1. The change of the Company's corporate purpose; 2. The creation of shares with privileged voting rights; 3. The restriction of the transferability of registered shares; 4. An increase of the authorized or conditional share capital; 5. A capital increase out of equity, against contribution in kind or for the purpose of an acquisition of assets, and the granting of special benefits; 6. The limitation or withdrawal of subscription rights (Bezugsrechte); 7. The change of the Company's registered office. Resolutions concerning a merger, demerger and conversion shall be subject to the provisions of the Swiss Merger Act. Any provision of the Articles of Incorporation providing for a stricter voting requirement than that prescribed by law must be adopted or amended in accordance with such stricter voting requirement. Page 7 of 134

8 12 Chairman In the General Meeting of Shareholders, the Chairman of the Board of Directors or another board member designated by the Board of Directors shall take the chair. The chairman shall have all powers that are necessary to carry out a lawful and undisturbed Shareholders' Meeting. The chairman appoints the secretary and the tellers who do not have to be shareholders; these functions may be assigned to one and the same person. 13 Minutes The General Meeting of the Shareholders shall be minuted. The minutes shall contain the number, type, par value and class of the shares represented by the shareholders and the independent proxies of voting rights, and they shall contain the resolutions, results of elections, requests for information, and the respective replies, as well as the statements made by shareholders for record. The minutes shall be signed by the chairman and the secretary of the meeting. The shareholders have the right to inspect the minutes. B) The Board of Directors 14 Number of Members, Term of Office, Organization The Board of Directors shall be composed of at least 3 members who shall be elected by the General Meeting of Shareholders for a term of 1 year. The same applies to the chairman of the Board of Directors. The time period from one Annual General Meeting to the following shall be deemed to be one year. Page 8 of 134

9 Members whose term of office has expired are immediately eligible for re-election. The Board shall set up its own organization, with the exception of the election of the chairman of the Board of Directors and of the members of the Compensation and Nomination Committee. It shall appoint a chairman and one or more vice-chairmen as appropriate as well as a secretary who does not have to be a member of the Board of Directors. 15 Powers The Board of Directors is authorized to decide all matters which are not reserved by law or by these Articles of Incorporation to the General Meeting of the Shareholders. The Board of Directors shall have the following non-transferable and inalienable duties: 1. The ultimate management of the Company and the giving of the necessary directives; 2. The establishment of the organization of the Company; 3. The structuring of the accounting system and of the financial controls as well as the financial planning to the extent necessary to manage the Company; 4. The appointment and removal of the persons responsible for the management and the representation of the Company; 5. The ultimate supervision of the persons responsible for the management, in particular, in view of compliance with the law, these Articles and any regulations and directives; 6. The preparation of the business report and of the compensation report as well as the preparation of the General Meeting of Shareholders, and the implementation of its resolutions; 7. The notification of the judge in the case of overindebtedness. Page 9 of 134

10 The Board of Directors shall be authorized, in conformity with the statutory provisions, to delegate certain of its powers to committees or individual Board members or to persons outside the Board in accordance with the organizational regulations of the Company. The Board of Directors shall provide for an appropriate reporting to its members. The organizational regulations shall organize the Board of Directors, the committees and the management, determine the positions required therefore, define the powers and duties and regulate the reporting. 16 Representation of the Company The Board of Directors shall represent the Company towards third parties. It shall appoint the persons authorized to sign for the Company and shall determine their signatory power. 17 Meetings, Resolutions The Board of Directors shall meet as often as the business and affairs of the Company require a meeting and whenever it is requested by one of its members. Resolutions shall be taken with the majority of the votes of the directors present. In the event of a tie, the chairman shall have the casting vote. The Board of Directors may pass resolutions if the majority of its members are present. Resolutions may be taken by telephone or video conference, unless a member requests a physical meeting. No quorum is required, if exclusively resolutions regarding the implementation of a capital increase and respective amendments of the Articles of Incorporation have to be passed. Page 10 of 134

11 If a written proposal for a resolution has been submitted, the resolution may be taken by circular letter or telefax, unless a director demands a discussion in a formal meeting. A resolution by circular letter shall require the approval of all the members of the Board of Directors. Discussions and resolutions of the Board shall be minuted and the minutes shall be signed by the chairman and the secretary of the meeting and dispatched to all members of the Board of Directors. C) Compensation and Nomination Committee 18 Members and Term of Office The Compensation and Nomination Committee consists of at least two members of the Board of Directors. The General Meeting of the Shareholders elects the members of the Compensation and Nomination Committee annually and individually for a term of office until the completion of the next Annual General Meeting of the Shareholders. Re-election is possible. If there are vacancies in the Compensation and Nomination Committee, the Board of Directors shall appoint substitute members from among its members until completion of the next Annual General Meeting of the Shareholders. 19 Organization The Compensation and Nomination Committee organizes itself. It appoints a chairman from among its members. In addition, the Board of Directors issues a regulation on the organization and the decision-making of the Compensation and Nomination Committee. Page 11 of 134

12 20 Powers The Compensation and Nomination Committee shall assist the Board of Directors in the medium-term and long-term succession planning for members of the Board of Directors and of the Executive Committee. It submits nominations for members of committees to the Board of Directors as well as election and deselection requests for members The Compensation and Nomination Committee shall assist the Board regarding the determination and monitoring of remuneration policies and guidelines as well as of performance targets. In addition, he shall assist the Board in the preparation of proposals to the General Meeting of the Shareholders concerning the remuneration of the Board of Directors and of the Executive Committee. The Compensation and Nomination Committee may submit proposals to the Board of Directors concerning further compensation issues. The Board of Directors may delegate further tasks in connection with compensation, human resources and related matters to the Compensation and Nomination Committee. D) The Auditors 21 Election The General Meeting of the Shareholders shall annually elect the Auditors for a term of office of one year until the completion of the next Annual General Meeting. The General Meeting of the Shareholders may elect a special auditor for the current business year which issues the reports required for share capital increases. Page 12 of 134

13 22 Duties The powers and duties of the Auditors shall be as set forth in the statutory provisions. IV. Compensation of the Members of the Board of Directors and of the Executive Committee 23 Approval of Compensations The General Meeting of Shareholders approves annually, separately and binding the proposals of the Board of Directors with respect to the total amounts: 1. for the maximum remuneration of the Board of Directors for the upcoming business year; 2. for the maximum fixed remuneration of the Executive Committee for the upcoming business year; The Board of Directors may submit differing proposals to the General Meeting of the Shareholders. If the General Meeting of the Shareholders denies approving a total or partial amount, the Board of Directors may submit a new proposal during the same General Meeting. Should the Board of Directors not submit a new proposal or if this new proposal is also denied, the Board of Directors may convoke a new General Meeting of Shareholders, submitting new proposals for approval of the total amounts or various partial amounts. The Board of Directors shall submit the annual compensation report to the General Meeting of Shareholders for a consultative vote. Page 13 of 134

14 24 Supplementary Amount of Compensation in Case of Changes with the Executive Committee The Company or corporations controlled directly or indirectly by it shall be authorized to each person who becomes a member of the Executive Committee after the General Meeting of the Shareholders has approved the compensation a supplementary amount during the compensation period already approved if the compensation already approved is not sufficient to cover his compensation. The supplementary amount per each member of the Executive Team and per compensation period shall not exceed 40% of the maximum aggregate amount of fixed and variable compensation last approved. 25 Compensation of the Board of Directors and of the Executive Management The remuneration of the members of the Board of Directors as well as the fixed compensation of the members of the Executive Committee may be disbursed in the form of cash, shares, options, payments in kind or rendering of services. The Board of Directors shall determine the allocation conditions as well as waiting periods, if any. The members of the Board of Directors may be paid in cash according to customary in the market when conducting activities for directly or indirectly controlled companies which are not part of their mandate as members of the Company's Board of Directors. These allowances are part of the total compensation in accordance with Article 23. In addition to a fixed remuneration, the members of the Executive Committee may receive a variable payment which shall be based Page 14 of 134

15 on the Company's financial targets on the one hand and on the achievement of other group performance targets on the other hand. The total remuneration takes the function as well as the level of responsibility of the recipient into account. The performance goals of the members of the Executive Committee are set by the Board of Directors at the beginning of the year. They include corporate, sector-specific and / or individual goals. The Board of Directors shall determine the weighting of the objectives and the respective target values and evaluates the achievement of the goals at the end of the business year. The variable compensation of the members of the Executive Committee consists of a cash component and of a share component in the form of restricted shares for between one and three years. No compensation is being paid for activities of members of the Executive Committee within corporations which are directly or indirectly controlled by the Company. 26 Agreements with members of the Board of Directors and of the Executive Management The Company or corporations controlled by the Company may enter into agreements with members of the Board of Directors relating to their remuneration. Duration and termination shall comply with the term of office and the law. The Company as well as controlled corporations may enter into permanent or fixed-term agreements with members of the Executive Management. Short-term agreements have maximum duration of one year. Renewal is possible. Permanent agreements have a notice period not exceeding twelve months. Page 15 of 134

16 27 Mandates outside the Group No member of the Board of Directors may hold more than 10 additional mandates of which no more than 4 may be in a listed company. Furthermore, no member of the Executive Committee may hold more than 6 additional mandates of which no more than 2 may be in a listed company. Mandates in corporations which are controlled by the Company are excluded. Mandate shall mean mandates in the supreme management of a legal entity which is required to register in the Commercial Register or a corresponding foreign register. Mandates in different legal entities that are under joint control or the same beneficial ownership are deemed one mandate. 28 Loans and credits Loans and credits to members of the Board of Directors and of the Executive Committee may not exceed a maximum of CHF 100,000 per member, including related parties. Loans and credits to members of the Board of Directors are granted at market prices. Loans and credits to members of the Executive Committee are granted at conditions for employees in line with the industry standards. V. CLOSE OF THE FISCAL YEAR AND DISTRIBUTION OF PROFITS 29 Fiscal Year The annual accounts shall be closed on December 31 of each year. Page 16 of 134

17 30 Business Report For every financial year the Board of Directors shall prepare a business report consisting of the annual financial statements (containing the profit and loss statement, the balance sheet and notes to the financial statements), the annual report and the consolidated financial statements. 31 Distribution of Balance Sheet Profits Subject to the statutory provisions regarding the distribution of profits, the General Meeting of Shareholders shall, upon receipt of the Board of Directors' motions and the Auditors' report, resolve on the distribution of the balance sheet profits and determine the dividends to be distributed and the time of distribution. VI. DISSOLUTION 32 The dissolution and liquidation of the Company shall take place in accordance with the applicable provisions of the Swiss Code of Obligations. VII. COMMUNICATIONS AND PUBLICATIONS 33 Communications to the shareholders shall be made with legal effect exclusively by publication in the Swiss Official Gazette of Commerce. Official publications of the Company shall be made in the Swiss Official Gazette of Commerce. The Board of Directors may designate additional means of publication. Page 17 of 134

18 VIII. ACQUISITION OF ASSETS 34 According to the share transfer agreement of July 2, 2004 the Company acquires from INCUBA Venture I K/S, with registered office in Aarhuis, Denmark, 38.04% of the shares of OOVM A/S, Ellevej 2, DK-8310 Tranbjerg J, a Danish corporation (hereinafter referred to as OOVM), for the price of USD 1'309'087.00; from Lars Bak Holding ApS, with registered office in Tranbjerg, Denmark, 18.58% of the shares of OOVM, for the price of USD 639'298.70; from Steffen Grarup Holding ApS, with registered office in Hojbjerg, Denmark, 14.46% of the shares of OOVM, for the price of USD 497'538.10; from Kasper Lund, citizen of Denmark, in Holmegardsvej 67, 8270 Hojbjerg, Denmark, 14.46% of the shares of OOVM, for the price of USD 497'538.10; from Jakob Andersen, citizen of Denmark, in Holmegardsvej 135, 8270 Hojbjerg, Denmark, 14.46% of the shares of OOVM, for the price of USD 497' IX. CONTRIBUTIONS IN KIND 35 In the framework of the capital increase of December 31, 2008 and according to the contribution agreement entered into between the company and Sagem Wireless SA, 38 rue de Berri, F Paris, on December 23, 2008, the company receives 55,379 shares with a nominal value of Euro each in Certoise 2G SAS, 38 rue de Page 18 of 134

19 Berri, F Paris, in consideration for 3,210,790 shares in the company with a nominal value of CHF 0.10 each, whereby the total aggregate value of such 55,389 shares in Certoise 2G SAS amounts to an amount of at least CHF 321, In the framework of the capital increase of March and according to the contribution agreements entered into between the Company and the shareholders of Purple Labs SA, Bâtiment Athena, 11 Avenue du Lac de Constance, BP350 Savoie Technolac, Le Bourget Du Lac, France, as listed in Annex 1 of the contribution agreements, the company receives 1' shares in Purple Labs SA with a nominal value of EUR 0.37, in consideration for shares in the company with a nominal value of CHF 0.10 each, whereby the total aggregate value of such shares in Purple Labs SA amounts to at least CHF Zurich, March 24, 2016 Page 19 of 134