Mergers & Acquisitions 2020

Author:Ms Mariel Hoch
Profession:Baer & Karrer

1 Relevant Authorities and Legislation

1.1 What regulates M&A?

Swiss M&A transactions related to public companies are mainly governed by the Swiss Financial Market Infrastructure Act ("FMIA"; including its implementing ordinances) and the Swiss Federal Merger Act ("MA"). In addition, block trades in public M&A transactions are governed by the Swiss Code of Obligations ("CO").

The FMIA includes the Swiss public takeover rules which are enforced by the Takeover Board ("TOB"). Decisions of the TOB may be challenged before the Swiss Financial Market Supervisory Authority ("FINMA") and, finally, the Swiss Federal Administrative Court.

Apart from the specific FMIA tender offer regime, a number of other laws apply in the context of public tender offers, including the Federal Antitrust Act and the Federal Act on the Acquisition of Real Estate by Foreigners ("Lex Koller").

1.2 Are there different rules for different types of company?

The FMIA and the takeover rules only apply if: (i) the target is domiciled in Switzerland and its shares are fully or partly listed on a Swiss stock exchange; or (ii) the target is domiciled outside of Switzerland but the main listing of all or part of its shares is on a Swiss stock exchange.

In principle, the takeover rules do not apply to companies whose shares are exclusively listed on a stock exchange outside of Switzerland or not listed on a stock exchange. However, the TOB has held that the takeover rules also apply to a company not listed on a stock exchange if, shortly prior to the transaction, either the shares were delisted to prevent the applicability of the takeover rules, or the target was demerged from a listed company

1.3 Are there special rules for foreign buyers?

In principle, Swiss law does not set any restrictions on foreign investments.

There is, however, one important exception: pursuant to Lex Koller, foreign buyers (i.e. a foreigner, a foreign corporation or a Swiss corporation controlled by foreigners) have to obtain a special permit from cantonal authorities in order to purchase real property or shares in companies or businesses owning real property, unless the property is used as a permanent business establishment. Further requirements and/or limitations exist in certain regulated sectors.

The Swiss tender offer regime applies to both Swiss and foreign bidders.

A cross-border merger of a Swiss listed company into a foreign company as the surviving entity is only permissible if the Swiss company proves that, as a result of the emigration merger, its assets and liabilities will transfer to the foreign company and the equity or membership rights of the shareholders of the Swiss company will continue to be adequately safeguarded in the foreign company. Such cross-border emigration mergers of listed Swiss companies are, in many instances, subject to negative Swiss tax consequences, and are therefore rare in practice.

1.4 Are there any special sector-related rules?

Special sector-related rules apply in regulated industries such as banking and securities trading, insurance, healthcare and pharmaceuticals, and media and telecommunications.

In general, the acquisition by a foreign acquirer of control of a company holding a banking, securities trading, insurance, healthcare, pharmaceutical or a radio or television broadcasting licence is subject to prior authorisation by the competent regulator. In most of these industries, the acquisition of minority stakes is subject to additional notification or consent requirements.

1.5 What are the principal sources of liability?

The principal sources of liability of a bidder launching a public tender offer in Switzerland are the public tender offer regime, the significant shareholding disclosure obligations and the laws penalising infringements such as insider trading and market manipulation.

Regarding the public tender offer regime...

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