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BSCC Legal & Tax Chapter Dinner in Zurich ( " Dolder " ) Thursday, October 3, 2002

" The Role of the Swiss Regulatory Authorities in Unsolicited Takeovers ". BSCC Legal & Tax Chapter Dinner in Zurich ( " Dolder " ) Thursday, October 3, 2002. by Peter V. Kunz PD Dr. iur., Attorney-at-Law, LL.M. (Georgetown) Associate Professor (Privatdozent) at the University of Berne

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BSCC Legal & Tax Chapter Dinner in Zurich ( " Dolder " ) Thursday, October 3, 2002

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  1. "The Role of the Swiss Regulatory Authorities in Unsolicited Takeovers" BSCC Legal & Tax Chapter Dinner in Zurich ("Dolder") Thursday, October 3, 2002 by Peter V. Kunz PD Dr. iur., Attorney-at-Law, LL.M. (Georgetown) Associate Professor (Privatdozent) at the University of Berne Partner at Beglinger Holenstein Attorneys-at-Law, Zurich pkunz@beghol.ch

  2. PRELIMINARY REMARKS • * Heating-up of the "Swiss Takeover Market" • (e.g. in 2001: Baumgartner Papiers, Sulzer, Altin) * Legal Framework (i) SESTA since 1997/1998; (ii) various ordinances by Goverment and FBC and STB * Further Context (i) "London City Code"; (ii) WpÜG; (iii) 13th EU-Guideline (in preparation)

  3. II.LEGAL FRAMEWORK * Concept of "Acting in Concert" (e.g. disclosures: article 20 al. III SESTA, takeover procedures: article 24 al. III SESTA) * "Ping-Pong" for Public Takeover Offers (i.e. article 22 et seq. SESTA): • obligations of offeror (article 24 SESTA), e.g.: - prospectus (al. 1) - equal treatment of shareholders (al. 2) • obligations of target company (article 29 SESTA), e.g.: - report by BoD (al. 1) - restrictions in "dealings" (al. 2)

  4. II. LEGAL FRAMEWORK * Disclosure and Notification Obligations (e.g. article 20 SESTA : 5%, 10%, 20%, 33 1/3%, 50%, 66 2/3 % of the "voting rights") * Mandatory Offers (certain cases, i.e. article 32 SESTA): • "triggering threshold " with 33 1/3 % (al. 1) • offer to all shareholders (al. 1) • "price guarantee" (al. 4) • exceptions: "opting out" and "opting up"

  5. III. SWISS REGULATORY AUTHORITIES A. Overview  SWX Swiss Exchange (private organization) => Swiss Takeover Board/STB (= UEK) => Federal Banking Commission/FBC (= EBK) ----------------------------------------------------------------- - Courts - Cantonal Commercial Registers

  6. III. SWISS REGULATORY AUTHORITIES B. Swiss Takeover Board * article 23 SESTA * Zurich * "communication" with offeror and target company * recommendation  order * "appeal" to FBC possible * examples

  7. III. SWISS REGULATORY AUTHORITIES C. Federal Banking Commission * article 34 et. seq. SESTA * Berne * formal proceedings, "appeal", "right to draw" * order= Federal Court in Lausanne * precedents by STB/FBC (SESTA-applicability etc.)

  8. IV. CONCLUSIONS 1. Role ofRegulatory Authorities = safeguarding the integrity of the takeover process, in particular, for the sake of the shareholders of the target company and for market transparency reasons 2. Swiss Takeover Board: hight standard - "hands on approach", informal discussions etc. 3. Federal Banking Commission: high standard - "formal procedures only" etc. 4. Sceptisism: (i) Courts - e.g. "too slow"; (ii) Commercial Registers - e.g. hazard of the so-called "register freezing" ("Eintragungssperre") 5. Neutrality: Swiss Corporate Law "favors" the target company over the offeror

  9. Besten Dank für Ihre Aufmerksamkeit! Peter V. Kunz Beglinger Holenstein Attorneys-at-Law Utoquai 29/31, 8008 Zurich Phone: ++41 (0)1 257 20 00 Telefax: ++41 (0)1 251 84 09 pkunz@beghol.ch

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