Recent developments in Swiss Takeover Regulation
Modification of TOB Circular No. 1: Buyback Programmes
On 9 July 2013, the Takeover Board published the new TOB Circular No. 1: Buyback Programmes as modified on 27 June 2013. The modifications mainly relate to the publication and reporting of transactions during ongoing buyback programmes. Offerors no longer have to report transactions to the Takeover Board but instead must publish the transactions on their website, thereby complying with the detailed requirements set out in the circular (para. 27 to 30). Furthermore, the circular now specifies the calculation of the daily volume limit provided for in Art. 55b para. 1 lit. c of the Stock Exchange Ordinance (para. 23) and provides for slightly modified requirements for the confirmations that are to be filed with the TOB by the offeror and the bank or securities dealer appointed to conduct the buyback programmes (para. 20, 24, 25).
The new version of the TOB Circular No. 1 replaces the TOB Circular No. 1: Buyback Programmes of 7 March 2013. For any current buyback programmes, the publications by the offeror and confirmations to the TOB must comply with the modified provisions as of 1 September 2013, at the latest.
Amended Swiss Takeover Law entered into force
The partial revision of the Federal Law on Stock Exchanges and Securities Trading (Stock Exchange Act, SESTA), as it was adopted by the Swiss parliament on 28 September 2012, as well as the implementing rules thereto in the Ordinance on Stock Exchanges and Securities Trading (Stock Exchange Ordinance, SESTO), as enacted by the Swiss federal government, entered into force on 1 May 2013. The same is true for the one change to the Stock Exchange Ordinance-FINMA, as enacted by the Swiss Financial Market Supervisory Authority FINMA, as well as for the partial revisions of the Ordinance of the Takeover Board on Public Takeover Offers (Takeover Ordinance, TOO) and of the "TOB Circular No. 1: Buyback Programs", as enacted by the Swiss Takeover Board (TOB). The TOB further repealed "TOB Circular No. 4: Voluntary Public Exchange Offers".
The amended Swiss takeover law (including the amended regulation on the disclosure of shareholdings as well as on stock exchange crimes and market abuse) was uploaded on takeoverpractice.ch on 1 May 2013. All decision abstracts, which are concerned by the amended provisions, have been updated accordingly in our online case law commentary on Swiss takeover law.
Partial revision of the Takeover Ordinance – Entry into Force on 1 May 2013
In the course of the partial revision of the Stock Exchange Act entering into force on 1 May 2013, the Swiss Takeover Board has enacted partial revisions of the Ordinance of the Takeover Board on Public Takeovers Offers (Takeover Ordinance, TOO) and of the "TOB Circular No. 1: Buyback programs". The Takeover Board further decided to withdraw "TOB Circular No. 4: Voluntary public exchange offers". Together with the revised provisions of the Stock Exchange Act and of the Stock Exchange Ordinance, these amendments will enter into force on 1 May 2013.
For more information on the amendments to the Takeover Ordinance, click here.
For more information on the amendments to the TOB Circular No. 1, click here.
For more information on the withdrawal of the TOB Circular No. 4, click here.
Partial revision of the Stock Exchange Act – Entry into Force on 1 May 2012
On 28 September 2012 the Swiss parliament adopted a partial revision of the Federal Law on Stock Exchanges and Securities Trading (Stock Exchange Act, SESTA) (see news entry dated 18 January 2013). According to the information of the Federal Administration the revised provisions of the Stock Exchange Act as well as of the Ordinance on Stock Exchanges and Securities Trading (Stock Exchange Ordinance, SESTO) will enter into force on 1 May 2013.
For more information click here.
Partial revision of the Stock Exchange Act – No Request for Referendum
On 28 September 2012 the Swiss parliament adopted a partial revision of the Federal Law on Stock Exchanges and Securities Trading (Stock Exchange Act, SESTA), which, among other revisions, amends certain provisions on public takeover offers. The most important amendments are the following:
- Art. 32 para. 4 SESTA regarding the minimum price rule will provide only that the offer price must correspond to at minimum the highest price paid by the offeror in the 12 months preceding the offer. The so-called control premium, which allowed for the offering price to be up to 25% lower than the highest price paid by the offeror in the preceding 12 months, was deleted.
- Art. 33b para. 3 SESTA will increase the threshold for the qualification of a shareholder as a so-called qualified shareholder from 2% to 3%. With this amendment the uncertainties regarding potential parties to the takeover proceedings that followed from the difference between the previous thresholds for the disclosure of significant shareholders (3%) and the participation of shareholders in takeover proceedings (2%) have been eliminated.
The Swiss people could have requested a referendum on the partial revision by 17 January 2013 but no request has been filed.
For more information click here.