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 condition is allowed without the necessity that conditions imposed by the authorities constitute a material adverse change. Important rulings were made on no-shop provisions in transaction agreements and on various remuneration questions, such as bonus payments, retention agreements, accelerated vesting, lifting of lock-ups and the like. These decisions reinforce the Takeover Board’s evolving stance on ensuring fair practices and transparency in corporate takeovers.

 By Matthias Courvoisier (Reference: CapLaw-2024-38)

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 as to align it with the doctrine of ancillary benefits. However, in subsequent orders, the TOB has backtracked on its previous announcement.

By Ralph Malacrida (Reference: CapLaw-2023-60)

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. Dieter Dubs / Fabienne Perlini-Frehner (Reference: CapLaw-2021-36)

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 executed via Dutch auction. 

By Hansjürg Appenzeller / Dieter Grünblatt (Reference: CapLaw-2019-17)

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 might, therefore, expose the board members of target companies to ex post challenges.

By Urs Kägi / Daniel Küpfer (Reference: CapLaw-2017-46)

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 relation to EFG International concerning the non-existence of a tender offer duty in connection with the entry into a shareholders agreement.

By Philippe Weber / Thomas Brönnimann (Reference: CapLaw-2016-20)

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 eyes of the TOB, a new provision in the articles of association of Schindler which indirectly provides for an obligation to make a takeover offer for anyone who acquires more than 50% of the voting rights in Schindler, combined with Schindler’s existing opting out clause, would not have any legal effect.

By Pascal Hubli / Nadin Schwibs (Reference: CapLaw-2015-44)

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 issuance of an official list of media-addressees (including email-addresses) by the TOB and a change of the current practice of the TOB according to which the offeror bears all the risks in case of (partial) failure of the electronic publication. Rather, the offeror shall be responsible only for publishing the offer documents on its website and for delivering them to the media-addressees as per the list of media-addressees and to the TOB.

By Severin Roelli / Christian Leuenberger (Reference: CapLaw-2015-45)

In a recent decision in the matter of Schindler Holding Ltd (published on 18 October 2013), the Swiss Takeover Board approved the repurchase by Schindler of a significant block of own shares from a single shareholder during its ongoing buyback program requiring Schindler to change its buyback program at market price into a ten-day buyback offer at fixed price addressed to all the holders of shares and participation certificates. The ongoing buyback program at market price had to be suspended for the duration of the fixed-price offer and was resumed thereafter.

By Lorenzo Olgiati/Pascal Hubli (Reference: CapLaw-2014-7)