SWITZERLAND Law and Practice Contributed by: Nicolas Wehrli and Melanie Wilhelm, Loyens & Loeff
9.4 Independent Outside Advice It is common for the board to obtain financial, legal or other advice during an M&A transaction, to ensure it has sufficient expertise and acts with due care. The Swiss Takeover Board mandates obtaining a fair- ness opinion if the minimum of two members of the target company’s board has not been met, regard- ing each being free of conflicts of interest. Howev- er, obtaining fairness opinions is also customary in business combinations without conflicts of interest, as they help the board legitimise its position when rejecting or recommending the acceptance of a public tender offer.
convening an extraordinary shareholders’ meeting to decide on defence measures. Shareholder litigation challenging the board’s decision to recommend a particular transaction is uncommon in Switzerland. However, qualified shareholders (holding at least 3% of the voting rights of the target company) may participate in proceedings before the Takeover Board and are eligible to challenge its rulings. There have been past cases where qualified shareholders have challenged the Takeover Board’s rulings.
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