TRANSLATION OF ARTICLES OF INCORPORATION OF BB Biotech AG (BB
Biotech S.A.) (BB Biotech INC.) I. Name, registered office,
duration and purpose of the company Art. 1 Under the name BB
Biotech AG (BB Biotech S.A., BB Biotech Inc.) a limited liability
company is hereby incorporated with registered office in
Schaffhausen / SH pursuant to Art. 620 ff OR (Swiss Code of
Obligations). Its duration is indefinite. Art. 2 The purpose of the
company is joint capital investment in enterprises in the biotech
and genetic engineering and pharmaceutical industry and allied
branches with a view to achieving the highest possible yield on the
investment. For the attainment of this purpose, the company may
acquire and sell and administer participations both in Switzerland
and in other countries. The company may engage in all types of
business which are either directly or indirectly conducive to the
attainment of this corporate purpose. The company is authorized to
buy, mortgage and sell real properties. Within the framework of its
corporate purpose, the company may acquire participations in other
enterprises both in Switzerland and in other countries, incorporate
subsidiary companies and set up branch establishments in
Switzerland and representations in other countries. II. Equity
capital Art. 3 The equity capital of the company amounts to CHF
11,850,000.00 It is divided into 59,250,000 registered shares with
a nominal value of CHF 0.20 each. The shares are fully paid in. The
shareholder may ask the company at any time to issue an attestation
in respect of the shares which are owned by him. However, the
shareholder is not entitled to have share certificates printed and
delivered. On the other hand, the company may at any time print and
deliver share certificates and, with the consent of the
shareholder, cancel without replacement share certificates which
have been issued and are returned to it. If share certificates are
printed, the company may issue certificates representing one or
more shares. These certificates will bear the facsimile signature
of the Chairman of the Board of Directors.
Shares which are not represented by a document and the resulting
non-documented rights may be transferred by assignment only. To be
valid, such assignment must be notified to the company. Shares
which are not represented by a document and the resulting asset
rights can only be pledged in favor of the bank with which the
shareholder arranges for his shares to be kept in an account by
means of a written pledge agreement. Notification to the company is
not necessary. A register of registered shares is kept showing the
owners and beneficiaries of usufruct in the shares with their
surnames and first names, place of residence, address and
nationality (in the case of legal entities also the registered
office). In relation to the company, only the person whose name
figures in the share register will be recognized as a shareholder
or beneficiary of usufruct. Where shares are held by more than one
person, these persons may be jointly registered as shareholders
with voting rights, provided that they all make the declaration
stipulated in paragraph 10. If a shareholder changes his place of
residence or registered office he must notify the new address to
the company. Until such time as that has been done, all written
notifications shall be legally valid is made to his address entered
in the share register. The transfer of ownership of, or usufruct
in, a share must be approved in every case by the Board of
Directors. On request, persons who acquire registered shares shall
be entered in the share register as shareholders with voting
rights, provided that they specifically declare that they have
acquired these shares in their own name and for their own account.
If the purchaser is not willing to make such a declaration, the
Board of Director may decline to register him as having voting
rights. The limitation of registration pursuant to paragraph 10
likewise applies to shares which have been subscribed or acquired
through derivative channels by exercising a subscription, option or
conversion right. After hearing the registered shareholder or
nominees, the Board of Directors may delete entries in the share
register as shareholders with voting rights with retroactive effect
to the date of the entry if this was made by giving false
information. The person concerned must be informed immediately of
such deletion. The Board of Directors establishes the principles
for the registration of trustees/nominees and adopts the rules
necessary for compliance with the above provisions. Ownership of,
or usufruct in, a share or share certificate and every exercise of
shareholders' rights implies recognition of the articles of
incorporation of the company in their currently valid edition. By
an amendment of the articles of incorporation, the general meeting
may at any time convert bearer shares into registered shares and
registered shares into bearer shares. Moreover, by an amendment to
the articles of incorporation, shares may be divided into new
shares with a lower nominal value or combined into new shares with
a higher nominal value.
A person who acquires shares in the company is not required to make
a public purchase offer pursuant to Articles 32 and 52 of the
Federal act on stock markets and securities trading. III. Official
bodies of the company Art. 4 The official bodies of the company
are: A. B. C. D. The General Meeting The Board of Directors The
Compensation Committee The Auditors A. The General Meeting Art. 5
The General Meeting is the supreme body of the company. It has the
following exclusive powers: a) adoption and amendment of the
articles of incorporation; b) election of the members of the Board
of Directors, the Chairman of the Board of Directors, the members
of the Compensation Committee, the Auditors and the independent
voting rights representative; c) approval of the management report,
the consolidated financial statements and the annual financial
statements as well as the decision on the appropriation of the
profit stated on the balance sheet; d) approval of the compensation
of the Board of Directors and of the executive management pursuant
to Article 19 of these articles of incorporation; e) granting of a
release to the Board of Directors; f) decisions on matters which
are reserved either by law or by the articles of incorporation for
the General Meeting or which are placed before it by the Board of
Directors. Art. 6 The Ordinary General Meeting is held each year
within four months of the close of the financial year;
Extraordinary General Meetings are convened whenever the need
arises, in particular in the cases stipulated by law. The convening
of a General meeting may likewise be requested in writing by one or
more shareholders who together represent not less than one-tenth of
the equity capital, stating the purpose of the meeting.
Art. 7 The General Meeting is convened by the Board of Directors
and, if necessary, by the Auditors. The liquidators are likewise
entitled to convene a meeting. The General Meeting must be convened
not less than twenty days before the date on which it is due to be
held by publication in the Swiss Official Commercial Gazette
(SHAB). The invitation to attend must indicate the matters to be
discussed, together with the motions of the Board of Directors and
those of the shareholders who have asked for a General Meeting to
be held or for a particular matter to be placed on the agenda.
Shareholders who, alone or together, either hold shares with a par
value of at least CHF 1,000,000 or represent at least 10% of the
share capital may request that items be included on the agenda.
Such request must be made in writing at least 45 days prior to the
General Meeting, indicating the items to be discussed and the
motions of the shareholders. Subject to the provisions on a
universal meeting, no decisions may be taken on matters which have
not been announced in this manner, save on a motion to convene an
Extraordinary General Meeting or to perform a special audit. On the
other hand, no prior announcement is needed to table motions
relating to the matters placed on the agenda and to hold
discussions which are not followed by a decision. The owners or
representatives of all the shares may, if there is no objection,
hold a General meeting without complying with the formal
requirements for it to be convened (Universal Meeting). At such a
meeting, valid discussions may be held and decisions taken on all
matters which fall within the terms of reference of the General
Meeting, provided that the owners or representatives of all the
shares are present. No later than twenty days before the Ordinary
General Meeting, the business report, the compensation report and
the Auditors' reports must be laid open for scrutiny by the
shareholders at the registered office of the company. Attention
must be called to this fact in the invitation to attend the General
Meeting. Art. 8 Each share carries one vote at the General Meeting.
The Board of Directors shall establish the procedural rules
regarding participation in and representation at the General
Meeting and determine the requirements regarding proxies and voting
instructions. Each shareholder may arrange to be represented at the
General Meeting by the independent voting rights representative or,
with written authority, another shareholder. The independent voting
rights representative shall be elected by the General Meeting for a
term of office extending until completion of the next Ordinary
General Meeting. Re-election is possible at any time. If the
company does not have an independent voting rights representative,
the independent voting rights representative shall be appointed by
the Board of Directors for the next General Meeting.
The General Meeting takes its decisions and determines elections by
an absolute majority of the votes carried by the shares which are
represented, save where otherwise required by law or by the
articles of incorporation. In the case of elections, if the choice
is not made on the first ballot a relative majority will suffice on
the second ballot. The Chairman does not have a casting vote. Art.
9 The General Metering shall be chaired by the Chairman of the
Board of Directors, if he is unable to attend by the Vice-Chairman
and if the latter is likewise unable to attend by the longest
serving member of the Board of Directors who is present. At the
request of a shareholder, a chairman of the day may be elected in
every case. The Chairman designates the teller and the secretary to
write the minutes who need not themselves be shareholders of the
company. The minutes will be signed by the Chairman and by the
secretary. Art. 10 Votes are taken and elections held in public at
the General Meeting unless the Chairman orders otherwise or the
General Meeting resolves otherwise. B. The Board of Directors Art.
11 The Board of Directors shall have between three and seven
members. The General Meeting shall individually elect the members
and the Chairman for a term of office extending until completion of
the next Ordinary General Meeting, subject to prior resignation or
dismissal. Re-election is possible at any time. Art. 12 Except for
the election of the Chairman of the Board of Directors and the
members of the Compensation Committee by the General Meeting, the
Board of Directors shall constitute itself. It shall designate the
Vice-Chairman and, if necessary, the secretary who need not himself
be a member of the Board of Directors. If the office of the
Chairman of the Board of Directors is vacant, the Board of
Directors shall appoint a Chairman from among its members for a
term of office extending until completion of the next Ordinary
General Meeting. The Board of Directors meets at least once every
six months.
Art. 13 The Board of Directors is responsible for the strategic
management of the company and for supervising the management of the
business. It is responsible for all matters which are not reserved
for a different official body of the company by law, the terms of
the articles of incorporation or a regulation. The Board of
Directors may entrust the management of business or specific parts
thereof to one or more persons, members of the Board of Directors
or third parties who need not themselves be shareholders. It adopts
the organizational regulation and determines the appropriate
contractual relationships. Its non-transferable and inalienable
tasks include in particular: a) determination of the business
policy and strategic management of the company; b) organization of
the accounting system, financial control and financial planning; c)
preparation of the business report and the compensation report as
well as of the General Meeting including the presentation of the
annual financial statements and management report, together with
the Auditors' reports; implementation of the decisions taken by the
General Meeting; d) appointment and dismissal of the persons
entrusted with the management of business and with representation;
e) determination of authority to sign; f) high level supervision of
the persons entrusted with management of the business, in
particular with regard to compliance with the laws, articles of
incorporation, regulations and instructions;
g) decisions on the subsequent subscription to shares which have
not been fully paid in; h) decisions establishing capital increases
and the accompanying amendments to the articles of incorporation.
Art. 14 The Board of Directors has a quorum if a majority of its
members take part in the decisionmaking. In the case of decisions
establishing facts as prescribed by the Swiss Code of Obligations
(Art. 652g, 653g OR), the participation of one single member will
suffice. Minutes of the proceedings are to be written. These
minutes must be signed by the Chairman and by the secretary. Art.
15 Decisions are taken by an absolute majority of the votes of the
members who are present. In the event of a tied vote the Chairman
shall have the casting vote.
Decisions on a motion which has been tabled may be taken by written
declaration (including fax, telegram or telex) or by telephone if
no member of the Board of Directors expresses opposition to this
procedure. Such decisions must be taken unanimously and recorded in
the next minutes. C. The Compensation Committee Art. 16 The
Compensation Committee shall consist of at least one member of the
Board of Directors. The General Meeting shall individually elect
the member(s) of the Compensation Committee for a term of office
extending until completion of the next Ordinary General Meeting.
Reelection is possible at any time. If there are vacancies on the
Compensation Committee, the Board of Directors shall appoint one or
several members for a term of office extending until completion of
the next Ordinary General Meeting. The Compensation Committee shall
constitute itself. It shall elect a chairman from among its
members. The Board of Directors shall further establish a
regulation regarding the organization and the decision-making
process of the Compensation Committee. Art. 17 The Compensation
Committee shall support the Board of Directors in establishing and
reviewing the compensation strategy and guidelines and the
performance criteria as well as in preparing the proposals to the
General Meeting regarding the compensation of the Board of
Directors and of the executive management, and may submit proposals
to the Board of Directors in other compensation-related issues. The
Board of Directors shall determine in a regulation for which
positions of the Board of Directors and of the executive management
the Compensation Committee shall submit proposals for the
performance metrics, target values and the compensation, and for
which positions it shall itself determine, in accordance with the
articles of incorporation and the compensation guidelines
established by the Board of Directors, the performance criteria,
target values and the compensation. The Board of Directors may
delegate further tasks to the Compensation Committee. D. The
Auditors Art. 18 The General Meeting shall elect the Auditors for a
term of office extending until completion of the next Ordinary
General Meeting. Re-election is possible at any time. The Auditors
shall perform their auditing and reporting obligations in
accordance with applicable laws.
IV.
Compensation of the members of the Board of Directors and executive
management Art. 19
The General Meeting shall approve the proposals of the Board of
Directors in relation to: (i) the maximum aggregate amount of fixed
compensation of the Board of Directors for the following financial
year; (ii) the aggregate amount of variable compensation of the
Board of Directors for the past financial year; (iii) the maximum
aggregate amount of fixed compensation of the executive management
for the following financial year; (iv) the aggregate amount of
variable compensation of the executive management for the past
financial year. The Board of Directors may submit to the General
Meeting deviating or additional proposals in relation to the same
or different periods. In the event the General Meeting does not
approve a proposal of the Board of Directors, the Board of
Directors shall determine, taking into account all relevant
factors, the respective (maximum) aggregate amount or several
(maximum) partial amounts, and submit this or these amounts to the
General Meeting for approval. The company or companies controlled
by it may pay out compensation prior to approval by the General
Meeting subject to subsequent approval. Art. 20 The company or
companies controlled by it shall be authorized to pay to each
person who becomes a member or is being promoted within the
executive management after the General Meeting has approved the
compensation a supplementary amount during the compensation
period(s) already approved if the compensation already approved is
not sufficient to cover his compensation. The supplementary amount
per each compensation period and member shall not exceed 40% of the
maximum aggregate amount of compensation of the executive
management last approved. Art. 21 In addition to a fixed
compensation, members of the Board of Directors and of the
executive management may be paid a variable compensation, depending
on the achievement of certain performance criteria. The performance
criteria may include individual targets, targets of the company or
parts thereof and targets in relation to the market, indexes, other
companies or comparable benchmarks, taking into account position
and level of responsibility of the recipient of the variable
compensation. The Board of Directors or, to the extent delegated to
it, the Compensation Committee shall determine the relative weight
of the performance criteria and the respective target values.
Compensation may be paid in the form of cash, shares, options,
comparable instruments or units, or in the form of other types of
benefits. The Board of Directors or, to the extent
delegated to it, the Compensation Committee shall determine grant,
vesting, exercise and forfeiture conditions; they may provide for
continuation, acceleration or removal of vesting, exercise or
forfeiture conditions, for payment of compensation based upon
assumed target achievement, or for forfeiture of compensation, in
each case in the event of pre-determined events such as a
change-of-control or termination of an employment or mandate
agreement. The company may procure any required shares through
purchases in the market or by using conditional share capital.
Compensation may be paid by the company or companies controlled by
it. V. Agreements with members of the Board of Directors or
executive management Art. 22 The company or companies controlled by
it may enter into agreements for an indefinite term or for a fixed
term with members of the Board of Directors relating to their
compensation. Duration and termination shall comply with the term
of office and the law. The company or companies controlled by it
may enter into employment agreements for an indefinite term or for
a fixed term with members of the executive management. Employment
agreements for a fixed term may have a maximum duration of one
year; renewal is possible. Employment agreements for an indefinite
term may have a termination notice period of maximum twelve months.
VI. Mandates outside the group Art. 23 No member of the Board of
Directors may hold more than ten additional mandates of which no
more than four may be in listed companies. No member of the
executive management may hold more than five mandates of which no
more than one may be in listed companies. Not subject to these
limitations are: (a) mandates in companies which are controlled by
the company or which control the company; (b) mandates that a
member of the Board of Directors or executive management holds at
the request of the company or companies controlled by it. No member
of the Board of Directors or executive management may hold more
than ten such mandates; and (c) mandates in associations,
charitable organizations, foundations, trusts and employee welfare
foundations. No member of the Board of Directors or executive
management may hold more than ten such mandates. Mandates shall
mean mandates in the supreme governing body of a legal entity which
is required to be registered in the commercial register or a
comparable foreign register. Mandates in different legal entities
that are under joint control or same beneficial ownership are
deemed one mandate.
VII.
Annual financial statements and appropriation of the profit Art.
24
The financial year of the company runs from 1 January to 31
December of a particular year. The first financial year ends on 31
December 1994. Art. 25 The annual financial statements, comprising
the income statement, the balance sheet and the notes, will be
drawn up in compliance with the provisions of the Swiss Code of
Obligations, in particular Art. 958 ff OR and in accordance with
generally acknowledged commercial principles and those which are
usual in the branch. Art. 26 Subject to the statutory provisions on
the appropriation of the profit, in particular Art. 671 ff. OR, the
balance sheet profit shall be placed at the free disposal of the
General Meeting. VIII. Winding up and liquidation Art. 27 The
General Meeting may at any time resolve to wind up and liquidate
the company in compliance with the statutory requirements and those
of the articles of incorporation and arrange for liquidation to be
performed by the Board of Directors or by third parties. The
liquidation of the company shall be effected in compliance with
Art. 742 ff OR. The liquidators are authorized to sell the assets,
including real properties, by private treaty. Once the debts have
been settled, the assets will be distributed to the shareholders in
proportion to the amounts paid in by them. IX. Notices and
announcements Art. 28 Announcements by the company to the
shareholders and creditors will be made in the Swiss Official
Commercial Gazette (SHAB) which is the organ for publications of
the company. Invitations to attend meetings and notices to
shareholders shall be sent by letter to the last known addresses
appearing in the share register.
Schaffhausen, 17 March 2016
BB Biotech (BIT:BION)
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