SWITZERLAND Law and Practice Contributed by: Christoph Neeracher, Philippe Seiler and Lukas Bründler, Bär & Karrer Ltd
7. Takeovers 7.1 Public-to-Private
in a public company, irrespective of whether they are exercisable or not. If these thresholds are met, the private equity fund must then notify the company, as well as the competent disclosure office, within four trading days. It should also be noted that financial intermediaries that acquire or dispose of shares or acquisition or sale rights on behalf of third parties are not subject to this notification duty. Furthermore, aside from the disclosure obligation con - cerning significant interests in listed companies, there is a specific notification requirement for non-listed Swiss companies. Any person who, alone or by agree - ment with third parties, acquires shares in a non-list - ed Swiss company and thus reaches or exceeds the threshold of 25% of the share capital or voting rights, is obligated to disclose to the company the identity of the ultimate beneficial owner within one month of the transaction. Failure to comply with this notification requirement within the one-month period will result in the suspension of membership rights, including vot - ing rights, and forfeiture of monetary rights, such as dividend rights, until the required notice is provided. 7.3 Mandatory Offer Thresholds Under Swiss law, a mandatory offer is to be made when an investor directly, indirectly or acting in con - cert with third parties acquires equity securities which (together with the equity securities already owned (if any)) exceed the threshold of 33⅓% of the voting rights of the target company, whether exercisable or not. However, the shareholders’ meeting of the tar - get companies may either (i) raise this threshold up to 49% of voting rights – the so-called opting up – or (ii) decide that an offeror shall not be bound by the obli - gation to make a public takeover offer – the so-called opting out; both of these have to be reflected in the articles of association accordingly. 7.4 Consideration In private M&A transactions, consideration may con - sist of either cash, shares, securities or a combination thereof. Cash settlements tend to be more frequent, as share deals are usually only accepted by the seller if the shares given as consideration are readily market - able (which would be the case with listed companies).
In recent years, the number of public-to-private trans - actions has been relatively limited, due to the linger - ing effects of the pandemic, geopolitical conflicts, and tight monetary policy in many countries, all of which have hindered a robust recovery of the global econ - omy. However, given the large number of long-term commitments of private equity funds and the vast investments of private capital in public companies, we have started to see increased interest in public tender offers, including public-to-private transactions, some of which may materialise in the second half of 2025 or in early 2026. In the context of a public-to-private Swiss M&A deal, the target company, a publicly traded entity, assumes a pivotal role as the acquisition target for the bidding party seeking to take it private. The target company’s board of directors plays a critical function in assess - ing the acquisition proposal and acting in the best interests of the company and its shareholders. Their responsibilities encompass a thorough review of the acquisition terms, conducting due diligence, and engaging in negotiations with the bidder to ensure an equitable and advantageous outcome for the share - holders. In buyouts of publicly listed companies, the key docu - mentation to be prepared includes the following: • a pre-announcement of the tender offer (public advertisement); • an offer document outlining the offer to the share - holders of the target company; and • a report of the target’s board of directors. 7.2 Material Shareholding Thresholds and Disclosure in Tender Offers The Financial Market Infrastructure Act (FinMIA) pro - vides for a number of thresholds that trigger a noti - fication and disclosure obligation, in the event that a private equity fund (directly, indirectly or in concert with a third party) reaches, falls below or exceeds a certain percentage of voting rights in a listed com - pany. The relevant thresholds are 3%, 5%, 10%, 15%, 20%, 25%, 33⅓%, 50% or 66⅔% of the voting rights
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