Reproduced with permission from Law Business Research Ltd. This content was first published in Lexology GTDT: Practice Guide – Swiss M&A, July 2020. For further information please visit https://www.lexology.com/gtdt/guides/swiss-m-and-a 1 SWISS M&A PRACTICE GUIDES PRACTICE GUIDE PRACTICE Swiss M&A First Edition Contributing Editors Ueli Studer, Kelsang Tsün and Sophie Stählin © Law Business Research 2020 Swiss M&A Practice Guide Contributing Editors Ueli Studer, Kelsang Tsün and Sophie Stählin Reproduced with permission from Law Business Research Ltd This article was first published in July 2020 For further information please contact [email protected] © Law Business Research 2020 Publisher Edward Costelloe [email protected] Subscriptions Claire Bagnall [email protected] Senior business development managers Adam Sargent [email protected] Dan Brennan [email protected] Published by Law Business Research Ltd Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Tel: +44 20 7234 0606 Fax: +44 20 7234 0808 © Law Business Research Ltd 2020 No photocopying without a CLA licence. First published 2020 First edition ISBN 978-1-83862-427-9 The information provided in this publication is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer–client relationship. The publishers and authors accept no responsibility for any acts or omissions contained herein. The information provided was verified between April and June 2020. Be advised that this is a developing area. Printed and distributed by Encompass Print Solutions Tel: 0844 2480 112 © Law Business Research 2020 Acknowledgements The publisher acknowledges and thanks the following for their assistance throughout the preparation of this book: BAKER MCKENZIE BÄR & KARRER AG FMP FUHRER MARBACH & PARTNERS HOMBURGER AG KELLERHALS CARRARD BASEL KLG NIEDERER KRAFT FREY LTD QUADRA ATTORNEYS AT LAW LTD UBS GROUP AG VISCHER WALDER WYSS LTD i © Law Business Research 2020 Contents Introduction ................................................................................................................................................................1 Ueli Studer, Kelsang Tsün and Sophie Stählin 1 Structuring Cross-border Transactions .................................................................................................5 Dieter Gericke and Marc Hanslin 2 Pricing ............................................................................................................................................................ 15 Philippe Weber and Manuel Werder 3 Data Privacy and Cybersecurity ............................................................................................................ 25 David Vasella 4 Key Intellectual Property Issues in M&A Transactions .................................................................. 37 Peter Widmer and Peter Bigler 5 Financial Market Regulation ................................................................................................................... 48 Stefan Kramer, Benedikt Maurenbrecher and Manuel Baschung 6 Merger Control ............................................................................................................................................ 55 Marcel Dietrich and Richard Stäuber 7 Private M&A ................................................................................................................................................. 66 Christoph Neeracher, Philippe Seiler and Raphael Annasohn 8 Public M&A ................................................................................................................................................... 73 Mariel Hoch and Florentin Weibel 9 Distressed M&A in Switzerland ............................................................................................................. 82 Emanuel Dettwiler and Lukas Bopp 10 Joint Ventures – Selected Aspects ....................................................................................................... 92 Pascal Richard and Petra Hanselmann 11 Acquisition Financing .............................................................................................................................. 102 Philip Spoerlé and Markus Wolf iii © Law Business Research 2020 Contents 12 Labour and Employment........................................................................................................................ 110 Manuel Werder and Valerie Meyer Bahar 13 Tax Considerations in M&A Transactions ......................................................................................... 119 Susanne Schreiber and Cyrill Diefenbacher 14 Dispute Resolution ................................................................................................................................... 131 Gérald Virieux and Mladen Stojiljković About the Authors ............................................................................................................................................... 141 Contact Details ..................................................................................................................................................... 151 iv © Law Business Research 2020 Introduction Ueli Studer, Kelsang Tsün and Sophie Stählin1 This is the first edition of the Practice Guide – Swiss M&A published by Lexology Getting The Deal Through. It provides a topical analysis of the legal framework, opportunities, challenges and risks that arise in connection with M&A transactions in Switzerland. As applicable, each chapter also specifically deals with matters of particular relevance in M&A transactions in the highly regulated financial services industry, which is of particular interest in Switzerland as one of the leading financial centres globally. As such, the Practice Guide – Swiss M&A aims to serve as a comprehen- sive manual for industry practitioners when dealing with transactions with a Swiss dimension, in continuation of previous Lexology Getting the Deal Through publications answering key questions around Swiss M&A. We, from UBS’s Group Corporate Legal team, have assisted in the selection of the chapters for the Practice Guide – Swiss M&A and in bringing together authors known for their expertise and vast experience in M&A and related fields of law. We are very pleased to have been able to attract this selection of experts from very renowned Swiss law firms. We have worked with many of these authors or their law firms in the past and can look back on a track record of successful collaborations, in particular in the M&A area. The Group Corporate Legal team with its dedicated lawyers advises and supports UBS Group and its business divisions on internal and external corporate transactions and reorgan- isations. Since 2014, UBS has undertaken a series of internal transactions changing its legal structure to improve the resolvability of the group in response to 'too big to fail' requirements. In December 2014, UBS Group AG became the holding company of the group. In 2015, UBS AG transferred its Swiss booked personal and corporate banking and wealth management business to the newly established UBS Switzerland AG. In 2016, UBS Americas Holding LLC was designated as UBS’s intermediate holding company for the group’s US subsidiaries and European wealth management subsidiaries were merged into UBS Europe SE, the group’s Germany-headquartered European bank subsidiary. In 2017, the shared services functions in 1 Ueli Studer and Kelsang Tsün are in-house lawyers at UBS Group AG and Sophie Stählin is a senior associate at Quadra Attorneys at Law Ltd. 1 © Law Business Research 2020 Introduction Switzerland and the UK were transferred from UBS AG to UBS Business Solutions AG. In 2019, UBS Limited, the Group’s UK-headquartered bank subsidiary, was merged into UBS Europe SE in response to the Brexit vote. Recent examples of external M&A transactions include: • the sale of UBS AG’s Asset Management’s fund administration servicing units in Luxembourg and Switzerland; • the joint venture between UBS AG and Japan’s leading trust bank combining UBS's wealth management expertise with comprehensive local trust banking capabilities; and • the sale of a majority stake in UBS's B2B fund distribution platform Fondcenter to another post-trade service provider, creating a top two B2B fund distribution platform in Europe, Switzerland and Asia. When advising UBS Group and its business divisions on internal and external corporate transac- tions, reorganisations and, in particular, on M&A transactions, we are naturally confronted with the legal issues and challenges that are described in the following chapters and in particular with those that are pertinent to the highly regulated financial services industry. The UBS Group includes various regulated legal entities holding a licence from the Swiss Financial Market Supervisory Authority (FINMA) or a foreign regulator. An M&A transaction involving one or several regulated entities may therefore trigger regulatory consent or notification requirements as described in the chapter 'Financial Market Regulation' covering M&A transactions involving Swiss financial institutions. Moreover, UBS as a financial group is subject to consolidated super- vision by FINMA. Therefore, and even if an M&A transaction does not directly