Recent developments in Swiss Takeover Regulation

TOB Circular No. 5: Reorganisation Exception / Reorganisation Concept of the Target Company

The Takeover Board issued the new "TOB Circular No. 5: Reorganisation Exception / Reorganisation Concept of the Target Company" (TOB Circular No. 5).

The legal background is the following: According to Art. 136 para. 1 FMIA, the Takeover Board, in justified cases, may grant exceptions from the obligation to make an offer, namely if the equity securities are acquired for reorganisation purposes (lit. e). In practice, the granting of such a reorganisation exception is generally linked to three conditions: (1) The need for reorganisation, (2) the suitability of the reorganisation measure and (3) the so-called subsidiarity of the reorganisation measure, meaning that a reorganisation exception should (only) be granted in a situation in which an investor would hardly be found without such an exception. The TOB Circular No. 5 is aimed at increasing legal certainty for market participants by specifying which information the Takeover Board generally requires, in order to assess an application for a reorganisation exception. This will enable the applicant and the target company to prepare the relevant information in a timely manner, so that the examination of a corresponding application can be conducted as quickly as possible by the Takeover Board.

This Circular will enter into force on 1 October 2020.

Click here to view the TOB Circular No. 5: Reorganisation Exception / Reorganisation Concept of the Target Company