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Public Takeovers in Switzerland – Review 2013 September 30, 2014 Public Takeovers in Switzerland – Review 2013 September 30, 2014 Public Takeovers in Switzerland – Review 2013 This Bulletin looks at selected themes and issues that have arisen be- tween January 1, 2013 and March 31, 2014 as a result of Swiss takeover transactions, decisions of the Swiss Takeover Board (TB), the Swiss Fi- nancial Market Supervisory Authority (FINMA) and the Federal Adminis- trative Tribunal (FAT)*. Table of Contents Overview..............................................................1 Cost Coverage .................................................. 16 New Takeover Rules ...........................................2 Withdrawal of Offer............................................ 16 Scope of Application ............................................2 Review Body ..................................................... 16 Potential Offer | "Put up or Shut up" ....................3 Rights of Qualified Shareholders ...................... 17 Preliminary Announcement .................................3 Repurchase of Own Shares .............................. 17 Mandatory Offer...................................................3 Squeeze-out ...................................................... 22 Competing Offers.................................................8 Amendment of Offer ..........................................10 Overview Acting in Concert ...............................................10 The year 2013 was a relatively calm year. Minimum Price Rule...........................................12 Best Price Rule ..................................................14 6 takeover offers were announced (including Conditions..........................................................14 2 mandatory and 4 voluntary offers, while Equal Treatment ................................................14 one offer was unfriendly; all offers were cash Defense Measures.............................................15 offers); Board Report .....................................................15 14 share buy-back programs were submitted Type of Consideration........................................16 to the TB (of which 11 were exempted via * This Bulletin is the eighth prepared by the author on this topic. See Public Takeovers in Switzerland – Review 2005, dated March 16, 2006; Public Takeo- vers in Switzerland – Review 2006, dated September 13, 2007; Public Takeovers in Switzerland – Review 2007, dated June 17, 2008; Public Takeovers in Switzerland – Review 2008, dated October 21, 2009; Public Takeovers in Switzerland - Review 2009, dated July 16, 2010; Public Takeovers in Switzerland – Review 2010, dated June 30, 2011; Public Takeovers in Switzerland – Review 2011, dated October 22, 2012; Public Takeovers in Switzerland - Review 2012, dated November 19, 2013, all available at www.homburger.ch. Public Takeovers in Switzerland – Review 2013 2 | 23 September 30, 2014 the reporting procedure and 3 were ex- The decision of the TB of September 23, 2013 in empted via a decision of the TB); and the matter International Minerals Corporation2 10 other procedures, 4 of which were an (IMZ) was the first decision applying the new ex- exemption from and 6 of them were about tended scope of application of the Swiss takeover the non-application of the mandatory offer, rules. IMZ is a Canadian company listed both on were initiated. the Toronto Stock Exchange and on the SIX Swiss Exchange. Hochschild is a UK company. IMZ held In total, the TB rendered 23 decisions in 2013. 40% and Hochschild held 60% of the share capital of Minera, a company incorporated in Peru. IMZ New Takeover Rules and Hochschild had agreed that the latter would Major amendments to the takeover laws, including take over all shares held by IMZ in Minera. In order the takeover ordinances, as well as the rules re- to perform this combination, IMZ spun-off all its garding the notification of major shareholders en- assets except for the 40% stake in Minera and tered into force on May 1, 2013. The revision ex- subsequently Hochschild took over all the shares tends the scope of application of share ownership of IMZ via a Plan of Arrangement under Canadian disclosure rules and takeover rules to foreign com- laws. In concreto, the shareholders of IMZ ap- panies with a principal listing in Switzerland, abol- proved the Plan by a double qualified majority and ishes the possibility to pay a control premium by the competent court in Canada approved the Plan, stating that the offer price may not be lower than implementing hereby a transaction similar to a the highest price paid for securities of the target mandatory exchange offer (quasi-merger). during the twelve months preceding the offer, limits the possibility of cash purchases in connection with According to art. 53 SESTO, the equity securities exchange offers, changes the framework for share of a company not domiciled in Switzerland are buy-backs, tightens the sanctions system and ad- mainly listed in Switzerland when the company dresses a number of procedural questions. In ad- must fulfill at least the same duties and mainte- dition, the revision brought new rules and proce- nance of a listing on a stock exchange in Switzer- dures governing insider dealing and market ma- land as a company domiciled in Switzerland. The nipulation. Both aspects of the revision have been SIX Swiss Exchange publishes which equity secu- addressed by a special Homburger Bulletin1. rities of companies not domiciled in Switzerland are mainly listed. As IMZ was simultaneously listed Scope of Application on the Toronto Stock Exchange and on the SIX "Foreign Company with Main Listing in Swit- Swiss Exchange, the TB was competent in this zerland". According to art. 22 para. 1 SESTA, transaction. Swiss takeover rules apply to public offers for in- vestments in target companies (i) domiciled in "Listed Securities". In the Victoria-Jungfrau Col- Switzerland whose equity securities are in whole or lection takeover, the takeover offer launched by in part listed in Switzerland; and (ii) not domiciled AEVIS Holding AG on October 24, 2013 was made in Switzerland whose equity securities are in whole while the target had already received the blessing or in part mainly listed in Switzerland. for its delisting by the SIX Swiss Exchange and the BX Berne eXchange, which was deemed effective November 29, 2013 (last trading day). The TB held that a delisting during a takeover procedure does not preclude the Swiss takeover rules to be appli- 1 See Homburger Bulletin dated May 3, 2013 on the Revision of Swiss Insider Trading and Market Manipulation Rules and Homburger Bulletin dated June 10, 2013 on New Takeover Law – Abolition of Control Premi- 2 Decision 547|01 of the TB dated September 23, 2013 in the matter um and Other Changes to Takeover and Disclosure Rules. International Minerals Corporation. Public Takeovers in Switzerland – Review 2013 3 | 23 September 30, 2014 cable to the transaction, including up to the lapse court appeal6. Against this background, the TB of the best price rule period, i.e. six months after came to the conclusion in the IMZ case that a Plan the end of the additional acceptance period3. of Arrangement under Canadian law is not a take- over offer: the approval by a qualified majority of In the WM Technologie case, TB reaffirmed its the shareholders' meeting made this corporate practice of the applicability of the takeover laws to action mandatory also for dissenting shareholders; non-listed companies per analogiam, if the take- the dissenting right did not allow dissenting share- over offer relates to non-listed shares of a newly holders to refuse individually to tender the shares, formed target company, which was spun-off from a but only to have the exchange ratio appraised by a 4 listed company. Greentec AG was planning to judge. acquire a business division of Walter Meier AG, which is a listed company, by way of a public take- Potential Offer | “Put up or Shut up” over of Walter Meier 's newly formed non-listed During the period under review, no material deci- subsidiary WM Technologie AG, to which certain sion was rendered relating to potential offer or the subsidiaries of Walter Meier have been contributed "put up or shut up" rule. and be spun-off from Walter Meier prior to the takeover. Although technically a takeover of a non- Preliminary Announcement listed company, the TB considered the takeover During the period under review, no material deci- offer for the non-listed WM Technologie to be in sion was rendered relating to the preliminary an- substance an offer for part of the listed Walter nouncement. Meier and, consequently, found the legislation on public takeovers applicable (in casue, however, the Mandatory Offer minimum price rule of Art. 32 para. 4 SESTA was General. Pursuant to art. 32 para. 1 SESTA, any- not applicable since the target had an opting-out in one who, directly, indirectly or acting in concert its articles of incorporation). with third parties, acquires equity securities, and, as a result of such acquisition, holds equity securi- "Takeover Offer". Swiss takeover rules are only ties of a listed Swiss company exceeding the 1 applicable if a public takeover offer is made (art. 22 threshold of 33 /3% of the voting rights of such para. 1 SESTA). This means that the holders of company, must submit an offer for all listed equity equity securities must be (publicly) invited to ten- securities of such company. der their securities in the offer. Further, such hold- ers must have a choice to accept or refuse the No Mandatory Offer
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