The Takeover Board recently modified Circular 1 regarding buy-back programmes. The revised circular brings, in particular, some changes to the reporting and publication procedure. It is therefore important that all existing buy-back programmes take the revised circular into account.
The Takeover Board's practice regarding the evaluation of the validity of an opt-out clause has recently undergone several changes. Transparency requirements must now be met not only at the shareholders' meeting itself, but also with regard to the information provided in the invitation to the meeting, so that the shareholders can understand the reason for, and the effects of, the opt-out clause.
In November 2010 the Federal Administrative Court handed down a decision in a public takeover matter as a result of an amendment in the regulatory framework governing public takeovers. The court rejected part of the Takeover Board's previous decisions. As a result, the board had to reassess numerous issues, and recently handed down its decision regarding the adequacy of the share price offered to the public shareholders.
The Takeover Board previously expanded its practice with regard to the evaluation of the validity of opt-out clauses. In two recent cases, the board had to decide whether opt-out clauses introduced after listing were valid. The board also took this opportunity to reflect on its own practice. These decisions show that board practice is still variable and can be expected to undergo further changes and/or clarifications.
The Swiss legislature has recently passed an amendment to the rules of the Stock Exchange Act. The new rules will, among other things, abolish the possibility for an offerer to pay a control premium to the controlling shareholders of a target company shortly before the launch of a public tender offer.
A new majority shareholder must take minority shareholders' interests into account. An offeror has two legal options to exclude or 'squeeze out' minority shareholders under the Stock Exchanges and Securities Trading Act and the Merger Act. The Supreme Court recently clarified certain questions relating to a squeeze-out merger following a successful public takeover bid, which was challenged under the Merger Act.
More Corporate Finance/M&A updates >