SWITZERLAND Law and Practice Contributed by: Marco Toni, Gilles Pitschen and Leonard Baumann, Loyens & Loeff
this varies largely between the different cantonal tax authorities. The preparation and completion of a spin-off usually takes six to 12 months. 6. Acquisitions of Public (Exchange-Listed) Technology Companies 6.1 Stakebuilding In Switzerland, it is common to acquire a cer- tain stake in a public company prior to making a public tender offer. The stakebuilding can take place as a private transaction or through trades on the exchange. Whenever the relevant shareholder reaches or exceeds a threshold of 3%, 5%, 10%, 15%, 20%, 25%, 33.3%, 50% or 66.6% of votes in the company through an acquisition of shares (or falls below such thresholds as a result of a sale of shares), the relevant shareholder has to notify the company and the exchange. These thresholds apply to stakebuilding in: • companies having their corporate seat in Switzerland and having all or parts of their participations listed on a Swiss stock exchange; and • companies having their corporate seat abroad, but which have all or parts of their participations primarily listed on a Swiss stock exchange. The notification obligation also applies when shares are bought or sold in concert and when converting participation certificates or profit par- ticipation certificates into shares, when exercis- ing convertibles or option rights, when there are
other changes in the capital of the company, and when exercising sale options. The notification duty is triggered by the creation of the right to acquire or dispose of the equity securities – ie, upon conclusion of the binding transaction. In the event of capital increases or decreases, the duty is triggered by the publica- tion in the Swiss Official Gazette of Commerce. The indication of an intended acquisition or dis- posal and similar proposals do not trigger the notification duty, as long as there are no legal obligations to execute the transaction imposed on any of the parties. When the notification duty is triggered, the ben- eficial owners of the equity securities (the party ultimately controlling the voting rights) have to be disclosed. In addition, in the case of parties acting in concert, the aggregate participation, identity of all members of the group, the type of acting in concert, and the representative must be disclosed as well. If a party publicly announces that it considers a public tender offer without the legal obliga- tion to submit such offer, the Swiss Takeover Board ( Übernahmekommission ) may at its dis- cretion ask the potential offeror either to publish a public tender offer within a certain deadline (“put up”) or to publicly declare that it will abstain from submitting an offer or from stakebuilding in excess of the threshold triggering a manda- tory offer (see 6.2 Mandatory Offer ) within six months (“shut up”). 6.2 Mandatory Offer Under Swiss public takeover laws, once a direct or indirect shareholding of 33.3% is reached, a mandatory offer has to be submitted – unless the articles of incorporation of the company provide for a valid opting out. This obligation also arises
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