Takeover

The past twelve months saw some significant developments in Swiss takeover law. Notably, the Takeover Board clarified the requirements for restructuring exceptions and examined cases involving the risk of a takeover obligation as a result of capital increases. Additionally, it addressed acting in concert scenarios and a special situation in which a competition law clearance…

The Swiss Takeover Board (“TOB“) applies a relaxed standard to modifications of participation plans concerning the target’s board members and executives (“PPs“). This conflicts with the doctrine of ancillary benefits. In a recent newsletter the TOB seemed to announce a change in the doctrine of modifications to PPs in connection with a public offer so…

In the case of MCH Group AG, the Swiss Takeover Board and FINMA refined their practice regarding the consent of the majority of the minority shareholders to the introduction of an opting out/up by clarifying who is considered to be a minority shareholder and which quorum is used to determine the voting result. By Dr….

Arbitrageurs are important players in the buy-back market, primarily because of certain tax considerations. One important driver is the repurchase price a company is permitted to offer in a share buy-back. Particular attention should be placed to secondary market transactions during a share buy-back (e.g., sales of ADRs). Novelties include VWAP-based buy-back programs and buy-backs…

On 22 November 2017, the Swiss Takeover Board issued a ruling regarding untrue or incomplete information with respect to the offeror contained in the offer prospectus published by HNA in connection with the public tender offer for all shares in gategroup. By Hans-Jakob Diem / Andreas Hinsen (Reference: CapLaw-2018-32)

Reverse break fees are becoming more and more popular in private but also public M&A deals. Compared to Switzerland, reverse break fees are often significantly higher in the US. The Swiss Takeover Board is limiting direct break fees in public offers. Reverse break fees, however, are not subject to any ex ante official control and…

This article summarises two decisions of the Swiss Takeover Board regarding the recently announced takeover offer for Kuoni by EQT, which, inter alia, contain relevant guidance in relation to the so-called “Minimum and Best Price Rules” and “irrevocables”. In addition, during the first quarter of 2016 the Swiss Takeover Board has passed a noteworthy decision…

In its recent decision 610/01 in the matter of Schindler Holding Ltd (published on 21 July 2015), the Swiss Takeover Board held that Swiss takeover law does not allow companies to provide for individual rules on the obligation to make a takeover offer that go beyond the options set forth in the law. Accordingly, in the…

In August/September 2015, the Swiss Takeover Board (TOB) conducted a consultation proceeding on a proposed revision of the Takeover Ordinance (TOO). At its core, the revision aims at abolishing the duty to publish the offer documents in newspapers. The authors support the proposed revision for efficiency reasons. For policy reasons, the authors further advocate the…