Category Archives: Takeover

The Repurchase of Own Shares Outside a Parallel Buyback Offer: The Decision of the Takeover Board in re Absolute Invest

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.

Takeover Board Opts-in Again Into the Opting-Out and Revives the Selective Opting-Out

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 at the general meeting introducing such opting-out (departing from the LEM Holding SA decision of 22 September 2011) and that (ii) an opting-out could also only apply to a specific transaction/shareholder, thereby allowing the introduction of the so-called selective opting-out (confirming its ESEC Holding AG recommendation of 6 June 2000, but departing from the decision of the Federal Banking Commission of 23 June 2000 in the same matter). No recourse has been filed against the decision of the TOB; it is therefore final.

Swiss Takeover Board Proposes New Rules on Offer Consideration in Qualified Voluntary Exchange Offers

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.

Profit warnings, profit collapses and profit hikes

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.

Proposed Abolishment of Control Premiums in Public Tender Offers

In the context of a major change of the Swiss law on insider trading, market abuse and similar practices, the Federal Council has proposed an amendment of the minimum price rules in public tender offers. If adopted, the new rules will abolish the possibility to pay a control premium to controlling shareholders ahead of a public tender offer. This article summarises the proposed new rules and puts them into context.