Latest Decisions in Takeover Matters
Decision 553/01 dated 27 December 2013 in the matter of Loeb Holding AG
In its decision 553/01, dated 27 December 2013, in the matter of Loeb Holding AG, the Swiss Takeover Board decided that the planned distribution of Loeb Holding AG’s shares (Series A and B) held by Fralo Holding AG as dividend in kind as part of the arrangements made for the succession of François Loeb, does not give rise to an obligation for Nicole Loeb and Ellan Holding AG to launch a takeover offer for Loeb Holding AG. The same applies to further acquisitions of Nicole Loeb and Ellan Holding AG, except if their shareholding falls below the threshold percentage of 33 1/3 % of the voting rights in the meantime.
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Decision 550/02 dated 3 December 2013 in the matter of Victoria-Jungfrau Collection AG
In its decision 550/02, dated 3 December 2013, in the matter of Victoria-Jungfrau Collection AG, the Swiss Takeover Board decided that the Fairness Opinion initiated by the board of directors of the target company as well as the report of the board of directors shall subsequently be amended and be published by the target company in their amended versions.
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Decision 551/01 dated 25 November 2013 in the matter of Tornos Holding Ltd.
In its decision 551/01, dated 25 November 2013, in the matter of Tornos Holding Ltd., the Swiss Takeover Board confirmed that the voluntary public takeover offer of Walter Fust to the shareholders of Tornos Holding Ltd. complies with the statutory provisions on public takeover offers.
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Decision 550/01 dated 7 November 2013 in the matter of Victoria-Jungfrau Collection AG
In its decision 550/01, dated 7 November 2013, in the matter of Victoria-Jungfrau Collection AG, the Swiss Takeover Board confirmed that the voluntary public takeover offer of AEVIS Holding SA to the shareholders of Victoria-Jungfrau Collection AG complies with the statutory provisions on public takeover offers.
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Decision 525/01 dated 26 July 2013 in the matter of Schindler Holding Ltd
In its decision 525/01, dated 26 July 2013, in the matter of Schindler Holding Ltd, the Swiss Takeover Board allowed Schindler Holding AG to repurchase in the context of its current buyback programme at market price a block of shares of a shareholder of Schindler's main shareholders' pool by way of a buyback offer at fixed price, if the current buyback programme is suspended and certain conditions and obligations are observed.
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Decision 549/01 dated 10 October 2013 in the matter of Absolute Invest Ltd
In its decision 549/01, dated 10 October 2013, in the matter of Absolute Invest Ltd, the Swiss Takeover Board confirmed that the voluntary public takeover offer of Alpine Select Ltd to the shareholders of Absolute Invest Ltd complies with the statutory provisions on public takeover offers.
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Decision 548/01 dated 2 October 2013 in the matter of Acino Holding Ltd.
In its decision 548/01, dated 2 October 2013, in the matter of Acino Holding Ltd., the Swiss Takeover Board confirmed that the voluntary public takeover offer of Pharma Strategy Partners GmbH to the shareholders of Acino Holding Ltd. complies with the statutory provisions on public takeover offers.
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Decision 547/01 dated 23 September 2013 in the matter of International Minerals Corporation
In its decision 547/01, dated 23 September 2013, in the matter of International Minerals Corporation, the Swiss Takeover Board confirmed that International Minerals Corporation, a Canadian "Corporation" with its domicile in Whitehorse, Yukon Territory, Canada, which has a (second) primary listing at SIX Swiss Exchange, is subject to Swiss takeover law pursuant to Art. 22 et seq. of the Stock Exchange Act. The Swiss Takeover Board further held that the intended takeover of International Minerals Corporation by Hochschild Mining plc through a "Plan of Arrangement" does not qualify as public tender offer in the sense of Art. 2 lit. e of the Stock Exchange Act. Moreover, the Swiss Takeover Board confirmed that the completion of the intended takeover would generally result in Hochschild Mining plc being under the obligation to make a public tender offer pursuant to Swiss takeover law but granted an exception in this case.
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Decision 542/02 dated 2 September 2013 in the matter of Società Elettrica Sopracenerina SA
In its decision 542/02, dated 2 September 2013, in the matter of Società Elettrica Sopracenerina SA, the Swiss Takeover Board confirmed that the mandatory public tender offer of SES Holding Ltd. to the shareholders of Società Elettrica Sopracenerina SA complies with the statutory provisions on public takeover offers. This mandatory tender offer was preceded by decision 542/01 dated 31 July 2013 in which the Swiss Takeover Board decided on various preliminary questions concerning acting in concert, valuation of potential other material benefits granted in pre-offer share purchases, equal treatment of shareholders, compliance with the Best Price Rule as well as the language of the offer documents.
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Decision 540/02 dated 26 August 2013 in the matter of Schmolz+Bickenbach Ltd.
In its decision 540/02, dated 26 August 2013, in the matter of Schmolz+Bickenbach Ltd., the Swiss Takeover Board dismissed a request by the qualified shareholder Gebuka AG to require the offeror Venetos Holding AG to amend its offer prospectus in the takeover of Schmolz+Bickenbach AG with regard to the description of agreements it has concluded with the target company.
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Decision FINMA dated 22 August 2013 in the matter of Schmolz+Bickenbach Ltd.
With decision of 22 August 2013 the FINMA Takeover Committee ruled on the appeal of the qualified shareholder Gebuka AG in the proceedings relating to the public takeover offer of Venetos Holding Ltd. for all outstanding registered shares of Schmolz+Bickenbach Ltd. The appeal challenged the Swiss Takeover Board decision 540/01, dated 25 July 2013, in the matter of Schmolz+Bickenbach Ltd., in which it was held that the public tender offer meets the legal requirements subject to certain amendments to the offer prospectus. The FINMA Takeover Committee dismissed the appeal of Gebuka AG and confirmed the decision of the Swiss Takeover Board.
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Decision 544/01 dated 13 August 2013 in the matter of LECLANCHE SA
In its decision 544/01, dated 13 August 2013, in the matter of LECLANCHE SA, the Swiss Takeover Board granted exemptions from the duty to make an offer with regard to the reorganisation of LECLANCHE SA to Precept Fund Management SPC, Precept Investment Management Limited, Stephen Barber, Jeffrey Flood, Venice Investments Group Corp., RIDAS AKTIENGESELLSCHAFT, PMServices Aktiengesellschaft and Foundation Prinz Michael as well as for Bruellan Corporate Governance Action Fund, Bruellan SA and Bruellan Holding SA.
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Decision 543/01 dated 7 August 2013 in the matter of Schmolz+Bickenbach Ltd.
In its decision 543/01, dated 7 August 2013, in the matter of Schmolz+Bickenbach Ltd., the Swiss Takeover Board held that Schmolz + Bickenbach GmbH & Co. KG, S+B Beteiligungs GmbH & Co. KG, Schmolz + Bickenbach Beteiligungs GmbH, Schmolz + Bickenbach Stahlcenter AG, SCHMOLZ + BICKENBACH Holding AG und SCHMOLZ + BICKENBACH Finanz AG did not have a legitimate interest to request a confirmation that there is no obligation to make a public takeover offer to the shareholders of Schmolz+Bickenbach Ltd. The Swiss Takeover Board thus refrained from adjudicating on the corresponding application filed by said parties.
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Decision 542/01 dated 31 July 2013 in the matter of Società Elettrica Sopracenerina SA
In its decision 542/01, dated 31 July 2013, in the matter of Società Elettrica Sopracenerina SA, the Swiss Takeover Board decided on various preliminary questions related to the upcoming mandatory offer of SES Holding Ltd to the shareholders of Società Elettrica Sopracenerina SA, concerning minimum price, best price rule, acting in concert and language of the offer documents. The obligation to launch a mandatory offer followed from the acquisition of Alpiq Ltd.'s 60.89% share in Società Elettrica Sopracenerina SA by SES Holding Ltd. in July of this year.
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Decision 540/01 dated 25 July 2013 in the matter of Schmolz+Bickenbach Ltd.
In its decision 540/01, dated 25 July 2013, in the matter of Schmolz+Bickenbach Ltd., the Swiss Takeover Board held that the public offer of Venetos Holding Ltd. to the shareholders of Schmolz+Bickenbach Ltd. meets the legal requirements under the condition that the offer prospectus will be modified, in particular that certain conditions are abolished and that the agreements with the target company are described therein.
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Decision 537/01 dated 22 July 2013 in the matter of Castle Alternative Invest Ltd.
In its decision 537/01, dated 22 July 2013, in the matter of Castle Alternative Invest Ltd., the Swiss Takeover Board has authorized Castle Alternative Invest Ltd. to repurchase in the current repurchase program a daily volume that is greater than what is allowed under Art. 55b para. 1 lit. c SESTO, since there has been a substantial decrease in the relevant average daily volume traded during the thirty days prior to the publication of the buyback program.
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Decision 536/01 dated 24 July 2013 in the matter of Sulzer Ltd and OC Oerlikon Corporation Inc.
In its decision 536/01, dated 24 July 2013, in the matter of Sulzer Ltd and OC Oerlikon Corporation Inc., the Swiss Takeover Board held that the refinancing of Sulzer Ltd and OC Oerlikon Corporation Inc. (including an enforcement of the pledged shares) does not trigger an obligation for Natixis S.A., Credit Suisse AG, J.P. Morgan Securities Plc, Société Générale, ING Bank N.V. and Liwet Holding AG to make a public takeover offer to the shareholders of Sulzer Ltd and OC Oerlikon Corporation Inc. since they are not acting together with a view of gaining control of the target companies.
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Decision 539/01 dated 24 June 2013 in the matter of Logan Capital AG
In its decision 539/01, dated 24 June 2013, in the matter of Logan Capital AG, the Swiss Takeover Board held that the opting out clause introduced into Logan Capital AG's articles of association in February 2013 is valid. Accordingly, the Swiss Takeover Board ascertained that the main shareholder Mountain Partners AG and its 100% subsidiary Mountain Capital Management AG are not subject to any obligation to make a public takeover offer to the shareholders of Logan Capital AG, neither as a group nor individually.
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Decision 535/01 dated 24 May 2013 in the matter of Schmolz + Bickenbach Ltd.
In its decision 535/01 of 24 May 2013, in the matter of Schmolz + Bickenbach Ltd., the Swiss Takeover Board has denied to grant exemptions of the duty to make an offer regarding Schmolz + Bickenbach Ltd. for Schmolz + Bickenbach GmbH & Co. KG, Schmolz + Bickenbach Beteiligungs GmbH & Co. KG, Schmolz + Bickenbach Beteiligungs GmbH, Schmolz + Bickenbach Stahlcenter AG, Schmolz + Bickenbach Holding AG, Schmolz + Bickenbach Finanz AG and Venetos Holding AG due to the lack of a need for financial restructuring in terms of the takeover law.
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Decision 527/01 dated 28 February 2013 in the matter of Transocean Ltd.
In its decision 527/01, dated 28 February 2013, in the matter of Transocean Ltd., the Swiss Takeover Board acknowledged that the public buyback program of 20 April 2010 has to be terminated on 20 April 2013 after a three-year period, which may not be extended. The TOB, however, held, that this does not prevent the launch of a new buyback program. The TOB granted exceptions for such new buyback program (which was publicly announced on 24 May 2013) with regard to the buyback volume and market abuse rules relating to buybacks on the New York Stock Exchange (NYSE) and imposed certain conditions with a view to compliance with the transparency requirements.
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Decision 533/01 dated 8 May 2013 in the matter of Castle Private Equity AG
In its decision 533/01, dated 8 May 2013, in the matter of Castle Private Equity AG, the Swiss Takeover Board has exempted the public buyback program of Castle Private Equity AG from the provisions governing public takeover offers for a maximum of 5‘835‘915 registered shares, representing 14.00% of the company's current share capital and voting rights (or 15.55% of the share capital and voting rights following the registration in the commercial register of the capital decrease decided upon at the annual general meeting of the company on 15 May 2013).
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Decision 521/02 dated 27 March 2013 in the matter of Repower AG
In its decision 521/02, dated 27 March 2013, in the matter of Repower AG, the Takeover Board held that the intra-group transfer of a participation of 33.7 % of the voting rights in Repower AG from Axpo Trading AG to Axpo Holding AG does not cause an obligation to make a public takeover offer.
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Decision 531/01 dated 26 April 2013 in the matter of Perfect Holding AG
In its decision 531/01, dated 26 April 2013, in the matter of Perfect Holding SA, the Takeover Board, in application of its recent practice relating to opting out clauses in the matter of Advanced Digital Broadcast Holdings SA, ascertained that the transparency requirement was not met when the opting out clause was adopted by the general meeting of Perfect Holding SA on 27 April 2007. As a consequence, the opting out clause is not valid for all shareholders and groups of shareholders, respectively, which will in the future exceed the threshold of 33 1/3% of the voting rights.
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Decision 530/01 dated 9 April 2013 in the matter of Fortimo Group AG
In its decision 530/01, dated 9 April 2013, in the matter of Fortimo Group AG, the TOB held that both the public tender offer of Forty Plus AG to the shareholders of Fortimo Group AG and the public buyback offer of Fortimo Group AG to its shareholders comply with the legal provisions on public takeovers. Further, the TOB held that it is permissible to launch the two transaction at the same time, in the sense of a combined transaction. The transactions shall prepare the delisting of Fortimo Group AG from the Berne Xchange.
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Decision 528/01 dated 28 February 2013 in the matter of Bossard Holding AG
In its decision 528/01, dated 28 February 2013, in the matter of Bossard Holding AG , the TOB held that in connection with the proposed capital increase of Bossard Holding AG there is no obligation for Bossard Holding AG, Kolin Holding AG, Bossard Unternehmensstiftung and Zürcher Kantonalbank to launch a mandatory tender offer.
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Decision 522/01 dated 4 January 2013 in the matter of Absolute Invest AG
In its decision 522/01, dated 4 January 2013, in the matter of Absolute Invest AG, the TOB held that the buyback program published by Absolute Invest AG on 8 March 2012 and terminated on 11 October 2012 (transaction-no 505) violated Swiss takeover regulation. According to this decision the TOB will exempt any new buyback programs of Absolute Invest AG only under certain conditions.
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* Decision not yet included in the Case Law Commentary on takeoverpractice.ch.