Takeover

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…

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)

In a far-reaching revision of the Stock Exchange Act (SESTA), which entered into force on 1 May 2013, the prohibitions of insider trading and market manipulation were moved from the Penal Code (PC) into the SESTA. As the scope of the prohibitions is very broad, the Stock Exchange Ordinance (SESTO) has been amended to include certain safe harbor exemptions, in particular concerning share buy-back programs. By and large, these safe harbor rules mirror some of the rules developed by the Takeover Board (TOB) for share buy-backs and set out in former versions of TOB Circular No. 1. As the TOB…

In a recent order the Takeover Board had to rule on whether to grant an unsolicited restructurer a reorganization exemption from the statutory duty to make a purchase offer for all shares of a listed company. The decision is of particular interest because the request for the reorganization exemption was not supported by the board of directors of the potential target company. In the case at hand, the Takeover Board denied the grant of a reorganization exemption applying, amongst others, the principle of subsidiarity which precludes the grant of an exemption as long as the company is in search for…

On 1 May 2013, a new set of rules governing the obligation of the bidder to offer an all cash alternative in voluntary exchange offers has come into force. The most significant change pertains to the introduction of an obligation to offer a cash alternative if the bidder purchases target shares for cash during the twelve months preceding the announcement of the exchange offer.

The Repurchase of Own Shares Outside a Parallel Buyback Offer: The Decision of the Takeover Board in re Absolute Invest The Takeover Board is enforcing compliance of buyback programmes exempted via reporting procedure more strictly. It has used a large buyback of an investment company outside a repurchase programme to remind issuers that the fundamental principles of takeover law apply to buyback programmes as well – with some surprising twists and consequences.

Opting-out has been the most discussed topic in Swiss takeover law since its entry into force in 1998. At the core of the debate has been the question as to who should regulate the right to opt-out from the mandatory offer obligation—the civil courts, the Takeover Board or both? On 11 October 2012, the Takeover Board (TOB) issued a decision in the matter Advanced Digital Broadcast Holdings SA (decision 0518/01), whereby the TOB stated that (i) it would review itself whether the introduction of the opting-out prejudices the rights of minority shareholders by examining the votes of these minority shareholders…

On 4 May 2012, the Swiss Takeover Board has proposed a new set of rules governing the obligation of the bidder to offer an all cash alternative in qualified voluntary exchange offers. The most significant change pertains to the extension of the already restrictive rules to the twelve-month period prior to the announcement of the exchange offer. It is uncertain when and to what extent the proposed rules will become effective.

In certain situations, Swiss listed companies are required to inform the market about expected changes of their financial results. In its completely revised Commentary on the Directive on Ad hoc Publicity, SIX Exchange Regulation included a more detailed disclosure regime applicable if market expectations deviate from actually expected results. The article discusses the regime and how it affects Swiss listed companies.