Recent developments in Swiss Takeover Regulation

Handling of employee stock option plans in connection with a public offering

Ancillary benefits provided in connection with a public offer have to be evaluated by the offeror in a first step. In a second step, the auditor has to verify the appropriateness of this evaluation (see Judgment of the Federal Administrative Court of 30 November 2010 in the matter of Quadrant AG, para. 7.3 et seq.). In order to comply with the Best Price Rule, the auditor has to provide a positive assessment and perform the related audit procedures (see Swiss Auditing Standard 880: Audit of public tender offers, para. 54). At its last meeting, the Swiss Takeover Board affirmed that this practice is to be applied analogously to benefits from employee participation plans of the target company that are adjusted in connection with a public offer. In particular, a vesting triggered or accelerated by a change of control shall also be considered an adjustment.