The HFA submitted an application for a special audit to the General Assembly in 2018, which came into a very complex and potentially costly situation due to the timing of Hapimag.
The Deputy Chairman of the Board of Directors entrusted with the meeting management for this agenda item (agenda item) Stefan Schalch shared the vote on the special test at the 2018 AGM.
First of all, the written motion submitted - against the recommendation of the Board of Directors - was supported by a sufficient majority and a resolution was passed.
Only after the 2017 annual report was available could current in-depth questions be introduced. Hapimag took a position on this after the first vote. Without a separate agenda item, the more detailed questions were then voted on in a second vote. This second vote did not result in a majority because the “independent proxy” could not have any instructions and voted against it.
However, the HFA had raised the nominal capital of CHF 2 million necessary for the in-depth questions for the implementation of a special audit.
The resolutions in the General Meeting enable shareholders to submit requests for a special audit to the court.
As a result of the split vote on the questions of the special audit, a Swiss peculiarity leads to increased complexity: the motion 1, which is approved by a majority, and the part 2, which is supported with a nominal capital of CHF 2 million, must be submitted to different courts, namely the competent cantonal court, with different deadlines or the competent higher court of the canton.
In a first conversation with the Hapimag Board of Directors in the presence of the lawyers, both parties identified a suitable special audit firm and agreed to combine the two procedures for cost reasons.
Surprisingly, companies received the offer to discuss all questions related to the special test. Unfortunately, despite strong demand, the Hapimag management was not ready to disclose figures for the individual resorts on the results of recent years, which could have answered many of the questions from the catalog. For example, an only slightly revised questionnaire for the special examination in word-like applications was brought to both courts on time.
The HFA also requested that the two procedures be brought together to ensure that a uniform special auditor was commissioned to avoid duplication of work and costs.
The company must bear the costs for the procedure decided by a majority; in the procedure supported with a nominal capital of CHF 2 million, the costs are determined at the discretion of the judge. The Hapimag management unexpectedly rejected this merger.
Therefore, the courts had to decide in advance whether the procedures should be merged, a situation that raises fundamental legal questions about the procedure for special examinations in Switzerland that have not yet been resolved.
The courts have agreed to the separation of the two parts of the special audit requested by Hapimag for purely legal reasons.
Not only evil-minded observers can get the impression that Hapimag is about wasting time.
The lawyer at Hapimag continues to try to prevent factual clarification as a whole with all legal tricks and also to further delay the special examination pending at the first court. What to hide What must remain hidden?
What spoke against merging the two procedures with the same content, which are only two procedures because the Chairman of the Board had already voted separately at the AGM?
The statement of the board of directors at the AGM 2019 was misleading the shareholders.
The statement at the AGM 2019 (minutes on page 7 above), according to which the Board of Directors and Hapimag "Respect the vote of the shareholders". For us, this is contradicted by the statement by the Hapimag lawyers on July 12, 2019.
There are three applications, whereby
under 1.) the questions are listed, which are to be written off as withdrawn by withdrawal.
under 2.) you are requested not to respond to certain questions.
Under 3), requests are made to reject questions, insofar as they can be dealt with at all.
In addition, on page 12 of the statement of July 2019, 31, a “lack of necessity for the special audit” is justified. There would only be one special test "Current interest in legal protection", also for a special test with the approval of the General Assembly.
Under item no. 80 page 39 it is stated that no extensive access is possible to events in group companies. (The plant sales were made by group companies!)
In conclusion on page 41 serial no. 85ff. it means:
withdrawn questions should be dismissed as settled,
a third of the questions could not be answered because they had been submitted to the factually competent court,
a special test is not necessary. because the right to information was not exercised on some questions,
a special examination is not necessary because some questions have been answered comprehensively and therefore rejected,
there would be inadmissible legal questions that could not be the subject of a special audit and should therefore be dismissed.
On page 48 of the statement, the request is made that the cost and burden sequence be borne entirely by the applicant.
For us, this means that there should be no special audit and we as the applicant should bear the costs of the previous procedure.
For us, the content of this written presentation on behalf of the company does not match the statement in the minutes of the Hapimag AGM 2019:
"In special test matters from minutes 2019 page 7 above: Position of the Board of Directors on the special audit: Hapimag respects the vote of the shareholders and thus the questions from the block of questions 1 adopted by the AGM (as the questions were submitted to the General Meeting); the only exceptions are inadmissible or non-auditable questions such as legal questions as well as topics that relate to business secrets.
Hapimag rejects the questions from question block 2 because they were also rejected by the general assembly. ”(In our eyes, the additional vote was not legally permissible)
We want clarity in the procedure and would like a correction in the commissioning of the lawyers so that the special audit with the declared will of Hapimag actually takes place.