As filed with the Securities and Exchange Commission
on December 16, 2022
Registration No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
On Holding AG
(Exact Name of Registrant as specified in its charter)
Not Applicable
(Translation of Registrant’s name into English)
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Switzerland
(State or other jurisdiction of
incorporation or organization)
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3021
(Primary Standard Industrial
Classification Code Number)
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Not Applicable
(I.R.S. Employer
Identification No.)
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On Holding AG Tax Recognition
Grants Plan
(Full title of the plan)
Förrlibuckstrasse 190
8005 Zürich
Switzerland
+41 44 225 15 55
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant’s Principal Executive Offices)
Cogency
Global Inc.
122 East 42nd Street,
18th Floor
New York, NY 10168
+1
800 221-0102
(Name, address, including
zip code, and telephone number, including area code, of agent for service)
Copies to:
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Deanna L. Kirkpatrick
Michael Kaplan
Yasin Keshvargar
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
+1 212 450-4000
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Stephan Erni
Patrick Schleiffer
Lenz & Staehelin
Brandschenkestrasse 24
CH-8027 Zürich
Switzerland
+41 58 450 80 00
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Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☐ |
Accelerated filer ☐ |
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| Non-accelerated filer ☐ (Do not check if a smaller reporting company) |
Smaller reporting company ☐ |
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Emerging growth company
☒
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If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ☐
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The documents
containing the information specified in Item 1 and Item 2 of Part I of Form S-8 will be sent or given to participants as specified
by Rule 428(b)(1) under the Securities Act of 1933, as amended (“Securities Act”). In accordance with the rules and
regulations of the U.S. Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by
reference:
(a) Annual Report of the Registrant for the year ended December 31, 2021, filed with the Commission on March 18, 2022 (the “Form 20-F”), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed;
(b) The Registrant’s Reports on Form
6-K filed with the Commission on April 11, 2022 (only with respect to “Board of Directors Compensation—Compensation awarded
to the Board of Directors in 2021” and “Executive Board Compensation—Compensation awarded to the EB in 2021” in
Exhibit 99.7 thereto), May 17, 2022 (only with respect to Exhibit 99.2 thereto), May 25, 2022 (other than with respect to Exhibit 99.2
thereto), August 16, 2022 (only with respect to Exhibits 99.1 and 99.2 thereto, and as amended by our Report on Form 6-K/A, filed with
the SEC on December 16, 2022) and November 16, 2022 (only with respect to Exhibit 99.2 thereto); and
(c) The description of the Registrant’s share capital, contained in the Registrant’s Registration Statement on Form 8-A, dated September 10, 2021, including any amendments or supplements thereto.
In addition, all documents subsequently filed by the Registrant with
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (the “Exchange Act”),
prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, including any Reports of Foreign Private Issuers on Form 6-K submitted
during such period (or portion thereof) that is identified in such form as being incorporated by reference into this Registration Statement,
shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of
such documents. The Registrant is not incorporating by reference any documents or portions thereof, whether specifically listed above
or filed in the future, that are not deemed “filed” with the Commission.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Swiss corporate law, an indemnification by
the corporation of a director or member of the executive committee in relation to potential personal liability is not effective to the
extent the director or member of the executive committee intentionally or grossly negligently violated his or her corporate duties towards
the corporation. Furthermore, the general meeting of shareholders may discharge (release) the directors and members of the executive committee
from liability for their conduct to the extent the respective facts are known to shareholders. Such discharge is effective only with respect
to claims of the company and of those shareholders who approved the discharge or who have since acquired their shares in full knowledge
of the discharge. Most violations of corporate law are regarded as violations of duties towards the corporation rather than towards the
shareholders. In addition, indemnification of other controlling persons is not permitted under Swiss corporate law, including shareholders
of the corporation.
Subject to Swiss law, our articles of association
provide for indemnification of the existing and former members of the board of directors and the executive committee and their heirs,
executors and administrators against liabilities arising in connection with the performance of their duties in such capacity, and permit
us to advance the expenses of defending any act, suit or proceeding to our directors and executive officers to the extent not included
in insurance coverage or advanced by third parties. In addition, under general principles of Swiss employment law, an employer may be
required to indemnify an employee against losses and expenses incurred by such employee in the proper execution of his or her duties under
the employment agreement with the employer.
We have entered into indemnification agreements with
each of the members of our board of directors and executive officers.
Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
*Filed herewith.
Item 9. Undertakings.
| (a) | The undersigned Registrant hereby undertakes: |
(1) To
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in this registration statement; and
(iii) To
include any material information with respect to the Plans not previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement;
provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of
an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions referenced in Item 6 of this Registration Statement, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered hereunder, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, on December 16, 2022.
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ON HOLDING AG |
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By: |
/s/ David Allemann |
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Name: |
David Allemann |
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Title: |
Co- Founder and Executive Co-Chairman |
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By: |
/s/ Caspar Coppetti |
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Name: |
Caspar Coppetti |
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Title: |
Co-Founder and Executive Co-Chairman |
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By: |
/s/ Olivier Bernhard |
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Name: |
Olivier Bernhard |
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Title: |
Co-Founder and Executive Director |
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By: |
/s/ Martin Hoffmann |
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Name: |
Martin Hoffmann |
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Title: |
Chief Financial Officer and Co-Chief Executive Officer |
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By: |
/s/ Marc Maurer |
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Name: |
Marc Maurer |
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Title: |
Co-Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below hereby constitutes and appoints Martin Hoffmann and Roman Bretschger and each of them, individually, as
his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and
stead in any and all capacities, in connection with this registration statement, including to sign in the name and on behalf of the undersigned,
this registration statement and any and all amendments thereto, including post-effective amendments and registrations filed pursuant to
Rule 462 under the U.S. Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the U.S. Securities and Exchange Commission, granting unto such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, as amended, this registration statement has been signed by the following persons on December 16, 2022 in the capacities indicated:
| Name |
Title |
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| /s/ David Allemann |
Co-Founder and Executive Co-Chairman |
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David Allemann
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(principal executive officer) |
| /s/ Caspar Coppetti |
Co-Founder and Executive Co-Chairman |
|
Caspar Coppetti
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(principal executive officer) |
| /s/ Olivier Bernhard |
Co-Founder and Executive Director |
|
Olivier Bernhard
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(principal executive officer) |
| /s/ Martin Hoffmann |
Chief Financial Officer and Co-Chief Executive Officer |
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Martin Hoffmann
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(principal financial officer and principal accounting officer) |
| /s/ Marc Maurer |
Co-Chief Executive Officer |
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Marc Maurer
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(principal operating officer) |
| /s/ Alex Perez |
Director |
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Alex Perez
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| /s/ Kenneth A. Fox |
Director |
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Kenneth A. Fox
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| /s/ Amy Banse |
Director |
| Amy Banse |
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| /s/ Dennis Durkin |
Director |
| Dennis Durkin |
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SIGNATURE OF AUTHORIZED
U.S. REPRESENTATIVE
Under the Securities
Act of 1933, the undersigned, the duly authorized representative in the United States of On Holding AG, has signed this registration statement
or amendment thereto on December 16, 2022.
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Cogency Global Inc.,
Authorized U.S. Representative
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By: |
/s/ Colleen A. De Vries |
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Name: Colleen A. De Vries
Title: Senior Vice President
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Exhibit 5.1
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Lenz
& Staehelin
Brandschenkestrasse
24
CH-8027 Zurich
Tel: +41 58
450 80 00
Fax: +41 58
450 80 01
Route de Chêne
30
CH-1211 Geneva
6
Tel:+41 58 450
70 00
Fax: +41 58
450 70 01
Avenue de Rhodanie
40C
CH-1007 Lausanne
Tel: +41 58
450 70 00
Fax: +41 58
450 70 01
www.lenzstaehelin.com
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On Holding AG
Förrlibuckstrasse 190
8005 Zurich
Switzerland
Zurich, December 16,
2022
On Holding AG
– Registration Statement on Form S-8
Ladies and Gentlemen
We
have acted as special Swiss counsel to On Holding AG, a stock corporation incorporated under the laws of Switzerland (the "Company")
in connection with the filing of a registration statement on Form S-8 (the "Registration Statement"), to be filed
with the United States Securities and Exchange Commission (the "SEC") on the date hereof for the purpose of registering
under the United States Securities Act of 1933, as amended (the "Securities Act"), 200,000 Class A ordinary shares
of the Company, each with a par value of CHF 0.10, currently held by the Company as treasury shares (such shares, the "Plan
Shares").
As
such counsel, we have been requested to give our opinion as to certain legal matters of Swiss law.
Capitalized
terms used but not defined herein shall have the meaning ascribed to them in the Documents (as defined below).
This
opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof. Such laws and the interpretation
thereof are subject to change. In the absence of explicit statutory law, we base our opinion solely on our independent professional judgment.
This opinion is also confined to the matters stated herein and is not to be read as extending, by implication or otherwise, to any document
referred to in the Documents (other than as listed below) or any other matter.
Partners Zurich:
Patrick Hünerwadel · Stefan Breitenstein · Matthias Oertle · Martin Burkhardt · Heini Rüdisühli
· Marcel Meinhardt ·
Patrick Schleiffer
· Thierry Calame · Beat Kühni · Lukas Morscher · Tanja Luginbühl · Prof. Jürg Simon
· Matthias Wolf · Hans-Jakob Diem ·
Prof. Pascal Hinny
· Harold Frey · Marcel Tranchet · Tino Gaberthüel · Astrid Waser · Stephan Erni · Dominique
Müller · Alexander Greter · Peter Ling ·
Fabiano Menghini
· Simone Ehrsam
Geneva: Shelby
R. du Pasquier · Guy Vermeil · François Rayroux · Jean-Blaise Eckert · Daniel Tunik · Olivier
Stahler ·
Andreas Rötheli
· Xavier Favre-Bulle · Benoît Merkt · David Ledermann · Jacques Iffland · Daniel Schafer ·
Miguel Oural · Fedor Poskriakov ·
Frédéric
Neukomm · Cécile Berger Meyer · Floran Ponce · Valérie Menoud · Hikmat Maleh · Roman
Graf · Sevan Antreasyan
Lausanne: Lucien
Masmejan
Admitted to the Bar
For
purposes of this opinion we have not conducted any due diligence or similar investigation as to factual circumstances, which are or may
be referred to in the Documents, and we express no opinion as to the accuracy of representations and warranties of facts set out in the
Documents or the factual background assumed therein.
For
purposes of this opinion, we have only reviewed originals or copies of the following documents we have deemed necessary or advisable
for the purpose of rendering this opinion (collectively, the "Documents"):
| (i) | An electronic
copy of the Registration Statement; |
| (ii) | an
electronic copy of an extract from the Commercial Register of the Canton of Zurich (the "Commercial
Register") dated December 16, 2022 regarding the Company, retrieved online
(the "Register Extract"); |
| (iii) | an
electronic copy of the articles of association (Statuten) of the Company, dated May 24,
2022, shown on the Register Extract as being the most recent articles of association filed
with the Commercial Register (the "Articles of Association"); |
| (iv) | an
electronic copy of the public deed regarding the resolutions of an extraordinary meeting
of the shareholders of the Company held on August 19, 2021 with respect to, among other
things, an ordinary capital increase with respect to 25,000,000 Class A ordinary shares with
a par value of CHF 0.10 each to be issued by way of conversion of freely distributable equity
(capital contribution reserves) for purposes of the management of employee participation
and incentive plans (such newly issued Class A ordinary shares, the "Treasury
Shares") (such shareholder resolutions, the "Shareholder Resolutions"); |
| (v) | an
electronic copy of the public deed regarding the resolutions of the board of directors of
the Company dated August 19, 2021, regarding, inter alia, the completion of the increase
of the Company's share capital with respect to the Treasury Shares and based on the Shareholder
Resolutions (Feststellungsbeschluss) (the "Implementing Board Resolutions"); |
| (vi) | an
electronic copy of the On Holding AG Tax Recognition Grants Plan (the "Plan"),
according to which Plan Shares may be granted to eligible participants under the Plan; and |
| (vii) | an
electronic copy of the written resolutions of the board of directors of the Company, dated
December 14, 2022, approving the Plan and the setting aside of certain Treasury Shares
as Plan Shares (such resolutions, together with the Implementing Board Resolutions, the "Board
Resolutions"). |
No
documents have been reviewed by ourselves in connection with this opinion other than those listed above. Accordingly, our opinion is
limited to the Documents and their legal implications under Swiss law.
In
rendering the opinion below, we have assumed:
| (i) | all
documents produced to us as originals are authentic and complete, and all documents produced
to us as copies (including, without limitation, electronic copies) conform to the original; |
| (ii) | all
documents produced to us as originals and the originals of all documents produced to us as
copies were duly executed and certified, as applicable, by the individuals purported to have
executed or certified, as the case may be, such documents; |
| (iii) | all
documents produced to us in draft form will be executed in the form of the draft submitted
to us; |
| (iv) | to
the extent relevant for purposes of this opinion, any and all information contained in the
Documents is and will be true, complete and accurate at all relevant times; |
| (v) | no laws
(other than those of Switzerland) affect any of the conclusions stated in this opinion; |
| (vi) | the
Registration Statement has been filed by the Company; |
| (vii) | the
Registration Statement is unchanged and correct, complete and up-to-date and in full force
and effect as of the date hereof, and no changes have been made which should have been or
should be reflected in the Registration Statement as of the date hereof; |
| (viii) | the
Shareholder Resolutions and the Board Resolutions (i) have been duly resolved in the manner
required by Swiss corporate law and the Articles of Association, (ii) have not been amended
and (iii) are in full force and effect; |
| (ix) | the
Plan has not been rescinded or amended and is in full force and effect; and |
| (x) | all
authorizations, approvals, consents, licenses, exemptions, other than as required by mandatory
Swiss law applicable to the Company or the Articles of Association, and other requirements
for the filing of the Registration Statement or for any other activities carried on in view
of, or in connection with, the performance of the obligations expressed to be undertaken
by the Company in the Registration Statement have been duly obtained or fulfilled in due
time and are and will remain in full force and effect, and any related conditions to which
the parties thereto are subject have been satisfied. |
Based
on the foregoing and subject to the qualifications set out below, we are of the opinion that as of the date hereof:
| (i) | The
Company is a stock corporation (Aktiengesellschaft) validly existing under the laws
of Switzerland. |
| (ii) | The
Plan Shares have been validly issued, fully paid as to their par value, and are non-assessable. |
The
above opinion is subject to the following qualifications:
| (i) | We express
no opinion on the matters covered herein with respect to any laws other than the laws of
Switzerland in effect on the date hereof. |
| (ii) | In
this opinion, Swiss legal concepts are expressed in the English language and not in their
original language. These concepts may not be identical to the concepts described by the same
English language terms as they exist under the laws of other jurisdictions. |
| (iii) | The
exercise of voting rights and rights related thereto with respect to any Plan Shares, is
only permissible after registration in the Company's share register as a shareholder with
voting rights in accordance with the provisions of, and subject to the limitations provided
in, the Articles of Association. |
| (iv) | We
have not investigated or verified the truth or accuracy of the information contained in the
Registration Statement, nor have we been responsible for ensuring that no material information
has been omitted from it. |
| (v) | We express
no opinion as to regulatory matters or as to any commercial, accounting, calculating, auditing
or other non-legal matter. |
We have issued
this opinion as of the date hereof, and we assume no obligation to advise you of any changes in fact or in law that are made or brought
to our attention hereafter.
We hereby consent
to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act.
This opinion is
governed by and shall be construed in accordance with the laws of Switzerland.
Yours sincerely,
/s/ Lenz &
Staehelin
Patrick Schleiffer
Exhibit 99.1
ON HOLDING AG
TAX RECOGNITION GRANTS PLAN
Approved by the Board of Directors on
December 14, 2022
Zurich, December 14, 2022
| /s/ David Allemann |
|
/s/ Caspar Coppetti |
| David Allemann |
|
Caspar Coppetti |
| Co-Chairman of the Board of Directors |
|
Co-Chairman of the Board of Directors |
The Nomination and Compensation Committee (the
“Committee”) of the Board of Directors (the “Board”) of On Holding AG, Zurich, (the “Company”)
has carefully considered the situation relating to the elevated tax obligations of certain employees of the Company and its subsidiaries
in connection with prior grants of equity incentive awards or free shares by the Company vesting in connection with the Company’s
initial public offering and has determined that it is in the best interests of the Company to grant such employees additional shares as
a way to assist with the tax obligations arising from the prior grants (the “Tax Recognition Grants”).
The Committee proposes and recommends that the
Board approve the Tax Recognition Grants pursuant to the Tax Recognition Grants Plan (the “Plan”) according to the
following terms:
| 1. | Eligibility for Tax Recognition Grants |
All non-executive employees of the Company and
of its subsidiaries shall be eligible, with the participants subject to the previously noted elevated tax obligations to be identified
by the Committee (the “Participants”).
| 2. | Tax Recognition Grants / Number of Shares |
The Tax Recognition Grants shall consist of up
to a maximum of 200,000 Class A ordinary shares of the Company with a nominal value of CHF 0.10 per share (the “Shares”).
| 3. | Date of Grant, Vesting and Settlement |
The Tax Recognition Grants will be communicated
as soon as practicable following the Effective Date and shall vest upon grant and be settled by the Company out of treasury Shares upon
vesting. No Tax Recognition Grants shall be made to employees who have given or received notice of termination.
Upon Share delivery, the employees will be requested
to sell the number of Shares necessary to capture the Tax Withholding or, alternatively, to arrange for payment of the Tax Withholding
to the Company/relevant subsidiary. Tax Withholding shall include all income/payroll taxes and/or social security contributions legally
applicable to the relevant employee and for which the Company or a subsidiary has a withholding and payment obligation under applicable
Swiss or foreign law.
This Plan shall become effective as of the date
approved by the Board (the “Effective Date”).
This Plan is governed by Swiss law.
* * * * *