SWITZERLAND Law and Practice Contributed by: Marco Toni, Gilles Pitschen and Leonard Baumann, Loyens & Loeff
• The processing of personal data must be made in good faith and must be proportion- ate. • Personal data may only be used for the purpose(s) specified at the time of its collec- tion. • Both the fact that personal data is being collected and the purpose of the processing must be apparent 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 particularly 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 high- er threshold up to 49% as stipulated in the target company’s articles of incorporation) of the vot- ing rights are acquired by the bidder (mandatory bid), unless there is an opting-out clause. Other- wise, a bid will usually only be made public after 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 envi- ronment, 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 securi- ties for trading on a trading venue. Provided that 10. Disclosure 10.1 Making a Bid Public
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 connection with a merger, spin-offs and the like – again, 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 pros- pects of the shares. Companies listed on a stock exchange and larger undertakings must prepare financial statements in accordance with a recog-
nised 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.
11. Duties of Directors 11.1 Principal Directors’ Duties
In general, the directors of a Swiss company: • have a duty of loyalty towards the company; • must always pursue the company’s best inter- est with due care (so-called duty of care); and • apply equal treatment to all shareholders (so- called fiduciary duties). This also applies in the event of a business com- bination 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
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