SWITZERLAND Law and Practice Contributed by: Marco Toni, Gilles Pitschen, Leonard Baumann and Lara Pafumi, Loyens & Loeff
basis of safeguarding their legitimate interests. On the other hand, the seller and the buyer must comply with the following general principles that apply to any pro- cessing of personal data: • the processing of personal data must be done in good faith and must be proportionate; • personal data may only be used for the purpose(s) specified at the time of its collection; and • both the fact that personal data is being collected and the purpose of the processing must be appar- ent to the relevant data subject – moreover, the data must be accurate, and data security must be ensured. Finally, specific requirements apply for transfers of personal data abroad, and for the processing of par- ticularly sensitive personal data. A requirement to launch a public tender offer applies if the target’s shares are listed on a Swiss stock exchange and more than 33.3% (or a higher thresh- old of up to 49%, as stipulated in the target com- pany’s articles of incorporation) of the voting rights are acquired by the bidder (mandatory bid), unless there is an opt-out clause. Otherwise, a bid will usually only be made public after the parties have reached a definitive agreement. The public offer is made public by way of an offer prospectus. In the scenario of a hostile bid environment, a bidder may publicly announce the intention of an acquisition of a target’s shares. In such case, the hostile bidder may be required to announce a public offer under the “put up or shut up” rule. 10.2 Prospectus Requirements The publication of a prospectus is required by any person making a public offer for the acquisition of securities or seeking the admission of securities for trading on a trading venue. Provided that information exists that is deemed equivalent in terms of content to a prospectus in connection with shares offered in a stock-for-stock takeover, a prospectus may not need to be published. A similar exception applies in con- nection with a merger, spin-offs and the like ‒ again, 10. Disclosure 10.1 Making a Bid Public
provided information exists that is deemed equivalent in terms of the content of a prospectus. 10.3 Producing Financial Statements The prospectus contains detailed information on the company’s assets, financial position and earnings, as well as on the type, price and prospects of the shares. Companies listed on a stock exchange and larger undertakings must prepare financial statements in accordance with a recognised financial reporting standard. 10.4 Disclosure of Transaction Documents The prospectus for a public tender offer needs to be submitted to the Swiss Takeover Board for review and clearance. In general, the directors of a Swiss company: • have a duty of loyalty towards the company; • must always pursue the company’s best interest with due care (so-called duty of care); and • must apply equal treatment to all shareholders (so- called fiduciary duties). This also applies in the event of a business combina- tion and other forms of M&A transactions. There is no general definition of what falls under the “best interest of the company”. In recent years, it has been discussed among Swiss scholars as to whether this includes only the shareholders’ interests (share- holder approach) or if the interests of other stakehold- ers must also be considered (stakeholder approach). Despite these discussions, in business combinations, a company’s interests should not only encompass value growth and fair shareholder compensation but also the interests of other stakeholders. It is up to the directors to weigh these different interests in a way that seems appropriate. 11. Duties of Directors 11.1 Principal Directors’ Duties The principle of equal treatment of the shareholders must always be observed, as long as this does not contradict the company’s best interests. For Swiss
250 CHAMBERS.COM
Powered by FlippingBook