SWITZERLAND Law and Practice Contributed by: Nicolas Wehrli and Melanie Wilhelm, Loyens & Loeff
lication of the offer. This review must be completed within “a short period of time” – typically it takes around three weeks. As part of the review, the Swiss Takeover Board ensures that the terms of the offer comply with Swiss law, including: • compliance with the best price rule; • the conditions of the offer; • the fairness opinion on the offer price; and • the provisions of the transaction agreement with the target company. Before the publication of the offer, the bidder usually publishes a pre-announcement. While not mandatory, this practice is common. The offer prospectus must be published within six weeks of the pre-announce- ment. The timeline for the tender offer is set by the bidder and disclosed in the pre-announcement or offer prospectus, based on the deadlines set forth in the Ordinance of the Swiss Takeover Board (see 4.14 Timing of the Takeover Offer ). If a competing offer is announced during the offer period, the shareholders can choose between the initial offer and the competing offer. To facilitate this choice, the Swiss Takeover Board consults with the parties involved to co-ordinate the timelines of both offers. It may set a maximum offer period and limit the Under Swiss takeover laws, the general offer period is between 20 and 40 business days. The Swiss Takeo- ver Board may shorten this period upon the bidder’s request if the bidder already holds a majority of voting rights and the board of directors’ report is published in the prospectus. deadlines for amendments of the offers. 4.14 Timing of the Takeover Offer The offer period can be extended up to 40 business days if an extension has been reserved in the offer. A longer extension requires the approval of the Swiss Takeover Board and is granted if justified by overrid- ing interests. In the past, extensions have been granted during administrative proceedings with the Swiss Adminis- trative Supreme Court, to review the launch of a partial offer during an ongoing primary offer, and for synchro-
nisation with a foreign public tender offer. Extensions may also be granted if regulatory or antitrust approv- als are not obtained before the offer period expires. 4.15 Privately Held Companies Privately held energy and infrastructure companies in Switzerland, typically structured as AGs or GmbHs, are mostly acquired through share purchases, allow- ing buyers to gain control without altering the compa- ny’s legal identity or disrupting operations. Asset deals are used when buyers prefer to acquire specific assets or avoid liabilities, either through individual transfers under the Swiss Code of Obligations (often requiring third-party consent) or via a statutory transfer under the Swiss Merger Act. Mergers, though less common, are also possible under the Merger Act and require public registration. The choice of structure depends on tax efficiency, regulatory approvals, and transaction confidentiality. Asset and merger deals may trigger public disclosure through the commercial register. Buyers must also consider due diligence on permits, environmental liabilities, and infrastructure-specific contracts, espe- cially in regulated sectors. Foreign investment rules may apply depending on the asset class and owner- ship structure. 5. Overview of Regulatory Requirements 5.1 Regulations Applicable to Energy and Infrastructure Companies Several activities in the energy and infrastructure sec- tors are regulated at the federal and/or cantonal level in Switzerland, as follows. Energy Production and Distribution • Renewable energy projects – require approvals for solar, wind, hydroelectric and geothermal instal- lations, including environmental compliance, land use and grid integration. • Nuclear energy – strictly regulated by the Swiss Federal Nuclear Safety Inspectorate (ENSI) for operation, safety and decommissioning.
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