SWITZERLAND Law and Practice Contributed by: Daniel Haeberli and Simone Gloor, Homburger
trustees and insurance companies. All of these activities are licensed and supervised by the Swiss Financial Market Authority (FINMA). Acquiring a Swiss bank as a financial investor poses unique challenges. One of the general conditions is that any individual or legal entity holding (directly or indirectly) at least 10% of the bank’s capital or voting rights must ensure that its influence will not negatively impact the pru- dent and reliable business activities of the bank. Meeting this condition is less problematic if the acquirer is itself a financial organisation subject to adequate supervision. When it comes to private equity funds, FINMA has been reluctant to approve the acquisition of a qualified participation (ie, 10% of the capi- tal or voting rights) in a bank. If FINMA takes the view that the conditions for the respective company’s licences are no longer met due to a shareholder acquiring a qualified participation, it can demand that the acquirer sells its participa- tion. If the acquirer fails to comply, FINMA may: • suspend the voting rights related to that qualified participation; or • where appropriate and only as a measure of last resort, revoke the existing licence and require the entity to liquidate. 9.2 Listed Targets If a party acquires shares, directly or indirectly, that increase its holding of the voting rights in a company listed in Switzerland to more than 33.33%, it must make a mandatory offer for all the target’s listed shares. However, in its articles of incorporation a company may: • increase the threshold from 33.33% to 49% (opting up); or
• subject to certain conditions, waive the appli- cation of the mandatory offer rule (opting out). The mandatory offer must be made within two months of the date on which the relevant thresh- old is exceeded. Acquiring less than 33.33% of the voting rights (or 49% in the case of an opting-up) in a Swiss target does not pose any significant issues. However, if the ownership percentage of voting rights held by a party crosses 3%, 5%, 10%, 15%, 20%, 25%, 33.33%, 50% or 66.66%, the acquirer must notify the relevant company and the relevant exchange within a short period of time. Public takeovers are subject to certain funds rules, which are generally in line with internation- al rules and standards. Consequently, funding must be secured before the offer is announced. The offer prospectus must contain the following, among other things: • information on the sources of financing; and • confirmation from the review body (a licensed security dealer or auditor approved to review security dealers) that the financing is avail- able. Commitment letters from banks in support of the bid are usually sufficient for the review body to issue its funding confirmation, provided the conditions in the commitment letters either cor- respond to the conditions of the tender offer or are under the sole control of the acquirer. After a successful tender offer, the bidder has the following two options in order to gain 100% control of the target.
488 CHAMBERS.COM
Powered by FlippingBook