SWITZERLAND Law and Practice Contributed by: Frank Gerhard, Andreas Müller and Timo Hasler, Homburger
7.2 Type of Disclosure Required The main disclosure document in a public tender offer is the offer prospectus, which is to be published by the bidder and must contain all necessary information to enable the target shareholders to decide whether to tender their shares. This includes: • the terms of the offer (eg, price, scope); • information on the bidder (eg, address, share capi - tal, main business activities); • information on significant shareholders of the target, parties acting in concert with the bidder and their transactions in target shares; • the sources of financing; • information on the bidder’s intention as to the future of the target’s business; • a description of the agreements between the bid - der and the target; and • information on the target’s corporate bodies and shareholders. Exchange Offers In an exchange offer, the bidder has to disclose more extensive information about itself and the securities offered as consideration for the target shares. In addition, the report of the Independent Review Body has to be disclosed in the offer prospectus. In the preparation phase of a public tender offer, the bid - der has to appoint a licensed securities dealer or a qualified accounting firm – in practice usually a large accounting firm – as the Independent Review Body, which must be independent from the bidder and the target. Its task is to review the offer prospectus for compliance with takeover regulations and, in particu - lar, to confirm in a report that the offer prospectus is complete and correct, that the target shareholders are being treated equally, and that the bidder has the necessary funds to complete the transaction. Special report The board of directors of the target has to publish a special report to its shareholders, which must contain all necessary information for the target shareholders to make an informed decision on the offer. The board of directors may recommend that shareholders accept or reject the offer, or it may just discuss the advantages
of the target must be disclosed and may affect the minimum offer price.
7. Disclosure 7.1 Making a Bid Public
Unless there is a leak requiring the target to make an announcement at an earlier stage (see 5.1 Require- ment to Disclose a Deal ), the bidder usually makes a so-called pre-announcement of a public tender offer before the offer prospectus is published, although this is not mandatory. In a negotiated transaction, the pre- announcement is usually made immediately after the signing of the transaction agreement (see 5.5 Defini - tive Agreements ). The pre-announcement (if any) must be published on the bidder’s website and sent to the major Swiss media outlets, the major financial news services and the TOB. It must: • identify the bidder and the target; • describe the scope of the offer (ie, the shares and financial instruments that it covers); • disclose the offer consideration; • describe any offer conditions; and • set out the expected timetable for the offer. The publication of the pre-announcement (or of the offer prospectus if no pre-announcement is made) has numerous legal consequences. For instance, the minimum price is set and the best price rule as well as many disclosure and other obligations of the bid - der and/or the target are triggered (see 4.2 Material Shareholding Disclosure Threshold , 4.3 Hurdles to Stakebuilding and 6.2 Mandatory Offer Threshold ). Furthermore, the bidder may change the terms of the offer only in favour of the target shareholders after the announcement. A bidder must publish the offer prospectus within six weeks of publishing the pre-announcement. The TOB may grant extensions under certain circumstances. The offer prospectus has to be published in the same manner as a pre-announcement. The offer prospec - tus itself has to be made available in printed form or electronically on the bidder’s website.
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