Switzerland Takeover Guide Contact Lorenzo Olgiati and Oliver Triebold Schellenberg Wittmer [email protected] [email protected] Contents Page INTRODUCTION 1 GENERAL LEGAL BACKGROUND 1 SCOPE OF APPLICATION OF TAKEOVER REGULATIONS 1 THE TAKEOVER BOARD AND THE FEDERAL BANKING COMMISSION 1 ACTIVITIES OF THE BIDDER PRIOR TO LAUNCHING A TENDER OFFER 2 FIRST CONTACT 2 TRANSACTION AGREEMENTS 3 TENDER OFFER PROCEDURE 4 DUTIES OF THE BIDDER 9 DUTIES OF THE TARGET COMPANY 9 SPECIFIC TOPICS 11 CONDITIONS 12 MANDATORY TENDER OFFERS 13 COMPETING TENDER OFFERS 13 DEFENCE MEASURES 14 2114709_1_takeover guide - switzerland INTRODUCTION This guide gives an overview of the law dealing with public tender offers in Switzerland of shares in Swiss companies whose equity securities are, in whole or in part, listed on a stock exchange in Switzerland. This guide deals with the Swiss rules on public takeovers as at 31 December 2007. This guide does not constitute legal advice. Anyone involved in public takeover action should seek specialist advice. GENERAL LEGAL BACKGROUND The rules and procedures ("Takeover Regulations") applicable to tender offers are laid down in the Swiss Stock Exchange Act ("SESTA") and in several ordinances issued by the Swiss government, that is the Federal Council, the Swiss Federal Banking Commission ("FBC") and the Takeover Board ("TOB"). SCOPE OF APPLICATION OF TAKEOVER REGULATIONS The Takeover Regulations apply to voluntary and mandatory public tender offers ("Tender Offers") for equity securities (including conversion and option rights relating to such equity securities) of a Swiss corporation ("Target Company") that has at least one class of equity securities listed on a Swiss stock exchange (the most important one being the SWX Swiss Exchange, "SWX"). The Takeover Regulations also apply to public offers by a Swiss corporation listed on the SWX to repurchase its own equity securities (including conversion or option rights relating thereto). Pursuant to the SESTA, anyone who holds shares representing more than 33.33% of the voting rights of a Swiss corporation listed on the SWX, whether or not such rights may be exercised, must submit a Tender Offer for all listed equity securities in such company ("Mandatory Offer"). The articles of incorporation of listed Swiss corporations may provide for a higher threshold of up to 49% (opting up) or may declare the mandatory Tender Offer obligations to be inapplicable at all (opting out). Non-public share purchases are not subject to the Takeover Regulations unless the threshold for submitting a Mandatory Offer is exceeded. As a general rule, the Takeover Regulations do not apply to contacts with the Target Company or its advisors which occur prior to the publication of a pre-announcement ("Pre-announcement") or, as the case may be, an offer prospectus ("Prospectus"). THE TAKEOVER BOARD AND THE FEDERAL BANKING COMMISSION The TOB ensures compliance with the Takeover Regulations which are designed to ensure fairness, equal treatment and transparency in Tender Offers and enable the holders of equity securities of a Target Company to make an informed decision on whether or not to accept the Tender Offer. The Takeover Regulations also ensure that neither the board of directors ("Board") of the Target Company nor any other party, such as a competing bidder, can frustrate a Tender Offer. Whenever a Tender Offer is made, the TOB appoints a committee for review of the offer documentation. The TOB (that is the committee) determines whether the Tender Offer is in compliance with the Takeover Regulations. In this connection, the TOB may require 2114709_1_takeover guide - switzerland page | 1 the disclosure of all necessary documents and information on the one hand from a bidder ("Bidder") of a Tender Offer and persons acting in concert with the Bidder ("Concert Parties") and on the other hand from the Target Company. There is no requirement to submit the offer documentation to the TOB prior to their publication. The Bidder may, however, submit the draft of the Pre-announcement and/or the draft Prospectus to the TOB for a preliminary review, and the TOB may make an advance ruling on such documentation prior to publication. After its review of the offer documentation, the TOB issues a recommendation to the interested parties, stating in particular whether the applicable regulations have been followed. The recommendation is usually published. Compliance with the takeover rules set by the SESTA and its implementing ordinances is also ensured by the Federal Banking Commission, which may issue binding administrative orders if the TOB’s recommendations are not complied with. Anyone who shows a legitimate interest may request the TOB to express its view on the interpretation of the Takeover Regulations. ACTIVITIES OF THE BIDDER PRIOR TO LAUNCHING A TENDER OFFER Desktop Due Diligence on Legal Aspects Before contacting a possible Target Company, Bidders generally evaluate all publicly available information on the Target Company. This typically includes a review of information on the Target Company’s group structure, stock exchange filings, significant shareholders, articles of association, corporate governance policy and minutes of the general assembly. Acquiring Shares and Options for Shares in the Target Company Building a significant position in a Target Company prior to launching a formal Tender Offer is permitted and has lately become more common. This is often done through a combination of shares and call options. Under the disclosure rules of the SESTA, a shareholder has to disclose its shareholdings if it acquires shares and/or “financial instruments” (including conversion rights, share acquisition and share sale rights) of a company incorporated and listed in Switzerland and thereby attains or exceeds certain thresholds. The first disclosure threshold is at 3%. To ascertain whether a threshold is reached a Bidder's positions in shares and derivative transactions such as call options must be aggregated. The Mandatory Offer obligation is triggered whenever a shareholder or group of shareholders directly or indirectly acquires equity securities in a listed Swiss company and thereby exceeds the threshold of 33.33% of the voting rights of the Target Company. FIRST CONTACT Letter of Intent A Bidder intending to make a Tender Offer may first approach the Board of the Target Company or its advisers. Alternatively, the Bidder may directly disclose its intentions to the public, that is, publish a Tender Offer without having informed the Target Company beforehand. 2114709_1_takeover guide - switzerland page | 2 Contacts with a potential Target Company prior to launching a formal Tender Offer are frequent. Such discussions may either be initiated by a non-binding letter of intent (“LOI”) to the Board of the Target Company or by informal discussions, most of the time followed by a LOI. The LOI typically includes the strategic considerations of the Bidder, a statement of the approximate price of the Tender Offer ("Offer Price"), due diligence aspects as well as confidentiality and exclusivity/non-solicitation clauses. The Board of the Target Company has no duty to enter into discussions about an Offer and/or to agree to a due diligence unless this is in the best interest of the Target Company and its shareholders. Due Diligence In a friendly takeover environment, the Bidder and the Target Company typically agree on the scope of the due diligence to be carried out by the Bidder. The Board of the Target Company should carefully select the information provided to avoid unwanted disclosure to another Bidder in a competing Tender Offer. Confidentiality If the Board of the Target Company decides to enter into discussions, it must ensure confidentiality both externally, by respective agreement with the Bidder (including its advisors) and internally, to avoid an obligation to immediately disclose (ad hoc publicity) under the SWX listing rules. Confidentiality is of utmost importance. If there is an information leak, the SWX listing rules require immediate disclosure of the existence of such takeover discussions. Exclusivity and Non-solicitation Non-solicitation clauses are standard in LOIs, since there is no statutory duty of the Board of the Target Company to solicit other Tender Offers. However, strict exclusivity clauses imposing a duty upon the Board of the Target Company not to consider a third party’s Tender Offer at all may violate the Target Company’s and/or its shareholders’ interests. Therefore, the exclusivity clause should at least preserve the right of the Target Company to respond to unsolicited approaches made by third parties with regard to any competing Tender Offer or similar transaction. TRANSACTION AGREEMENTS Regulatory Impact In Switzerland, Tender Offers have in recent times increasingly been backed up by transaction agreements between the Bidder and the Target Company and/or its major shareholders. The Takeover Regulations are also applicable to transaction agreements concluded prior to the publication of the Tender Offer or the Pre-announcement. Agreement with the Target Company By signing a transaction agreement, the Bidder secures support for the Tender Offer from the Board of the Target Company, and the Board is assured the submission of a serious Tender Offer of interest to the Target Company and its shareholders. A transaction agreement with the Target Company must respect the allocation of competences between the Board of the Target Company and its shareholders and