Latest Decisions in Takeover Matters
Decision 621/01 dated 21 December 2015 in the matter of Micronas Semiconductor Holding Ltd.
In its decision 621/01, dated 21 December 2015, in the matter of Micronas Semiconductor Holding Ltd, the Swiss Takeover Board declared that the public takeover offer of TDK Magnetic Field Sensor G.K. to the shareholders of Micronas Semiconductor Holding Ltd. complies with the statutory provisions on public takeover offers.
Click here to view the decision 621/01.
Decision 620/01 dated 10 December 2015 in the matter of Cytos Biotechnology Ltd
In its decision 620/01, dated 10 December 2015, in the matter of Cytos Biotechnology Ltd, the Swiss Takeover Board held that the merger between Kuros Biosurgery Holding AG and Cytos Biotechnology AG does not trigger the mandatory takeover offer obligation for Biosurgery Holding AG, Banque Pictet & Cie SA, Eckenstein-Geigy-Stiftung, Venture Incubator AG, Omega Fund IV L.P., LSP V Coöperatieve U.A., Jeffrey Hubbell, Didier Cowling et NexMed Holding AG.
Click here to view the decision 620/01.
Decision 611/02 dated 28 September 2015 in the matter of Sulzer Ltd
In its decision 611/02, dated 28 September 2015, in the matter of Sulzer Ltd, the Swiss Takeover Board granted an exemption to Tiwel Holding Ltd from the obligation to make a public takeover offer to the shareholders of Sulzer Ltd in connection with the transfer of the shares in Sulzer Ltd held by Liwet Holding Ltd.
Click here to view the decision 611/02.
Decision of the Federal Administrative Court dated 27 August 2015 in the matter of Sika Ltd
In the matter of Sika Ltd, the Federal Administrative Court has rejected the appeal against the decision of FINMA dated 4 Mai 2015 (see also news entry of 5 May 2015) lodged by William H. Gates III and Melinda French Gates as well as Cascade Investment L.L.C. to the extent the Court considered it in substance. This final decision conclusively determines that the opting out clause according to art. 5 of the articles of incorporation of Sika Ltd is applicable in the case of an acquisition of the majority of the voting rights over Sika Ltd by Compagnie de Saint-Gobain and that such an acquisition does not trigger an obligation for Compagnie de Saint-Gobain or any persons acting in concert to launch a public takeover offer to the shareholders of Sika Ltd.
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Decision 611/01 dated 12 August 2015 in the matter of Sulzer Ltd
In its decision 611/01, dated 12 August 2015, in the matter of Sulzer Ltd, the Swiss Takeover Board held that the public takeover offer of Tiwel Holding AG to the shareholders of Sulzer Ltd complies with the statutory provisions on takeover offers.
Click here to view the decision 611/01.
Decision 609/01 dated 14 July 2015 in the matter of SHL Telemedicine Ltd
In its decision 609/01, dated 14 July 2015, in the matter of SHL Telemedicine Ltd, the Swiss Takeover Board held that the intended transaction between SHL Telemedicine Ltd, Shanghai Jiuchuan Investment (Group) Co., Ltd and Jinoran Mergers (2015) Ltd is not a public takeover offer and granted an exemption from the obligation to make a public takeover offer to Shanghai Jiuchuan Investment (Group) Co., Ltd and Jinoran Mergers (2015) Ltd subject to the fulfilment of certain conditions.
Click here to view the decision 609/01.
Decision 610/01 dated 21 July 2015 in the matter of Schindler Holding Ltd
In its decision 610/01, dated 21 July 2015, in the matter of Schindler Holding Ltd, the Swiss Takeover Board held that the planned amendment of the articles of association regarding a customized Opting in clause which was scheduled to be resolved on at the upcoming extraordinary general meeting of Schindler Holding Ltd is not in compliance with the Stock Exchange Act. Schindler Holding Ltd proposes maintaining its present Opting out clause and adding another clause which effectively requires any person acquiring 50% or more of the voting rights to make a voluntary offer at a price that may be 10% lower than the price paid for the controlling interest. The Swiss Takeover Board states that while the law allows listed companies to modify some of the provisions applicable to mandatory offers (Opting up) or to waive them altogether (Opting out), it does not allow for any other customized solution outside the legal framework. In the view of the Swiss Takeover Board, Schindler Holding Ltd's proposal does not correspond to any of the options provided by the legislator. It would create a virtual obligation to make an offer at a threshold which the law does not provide for, coupled with the possibility to pay a control premium which is in breach of the principle of equal treatment of shareholders.
Click here to view the decision 610/01.
Decision 604/01 dated 8 June 2015 in the matter of Cassiopea S.p.A.
In its decision 604/01, dated 8 June 2015, in the matter of Cassiopea S.p.A., the Swiss Takeover Board has held that Cosmo Pharmaceuticals S.A. is not required to present a public takeover offer to the shareholders of Cassiopea S.p.A., if after the initial public offering of Cassiopea S.p.A., the participation of Cosmo Pharmaceuticals S.A. falls below the threshold of 50% of the voting rights (but stays above the threshold of 33 1/3% of the voting rights) and thereafter again exceeds the threshold of 50% of the voting rights of Cassiopea S.p.A.
Click here to view the decision 604/01.
Decision 606/01 dated 11 June 2015 in the matter of Züblin Real Estate Holding Ltd.
In its decision 606/01, dated 11 June 2015, in the matter of Züblin Real Estate Holding Ltd., the Swiss Takeover Board has granted an exemption of the duty to make a public takeover offer in favor of Lamesa Holding S.A., Lamesa Group Holding S.A., Lamesa Foundation, Lamesa Group Inc. and Victor F. Vekselberg in connection with the restructuring of Züblin Real Estate Holding Ltd.
Click here to view the decision 606/01.
Decision FINMA dated 4 May 2015 in the matter of Sika Ltd
In the matter of Sika Ltd, the Swiss Takeover Board held in decision 598/01 dated 1 April 2015, that the opting out clause of Sika Ltd (art. 5 of the articles of incorporation) is applicable in the case of an acquisition of the majority of the voting rights of Sika Ltd by Compagnie de Saint-Gobain and that this acquisition does not trigger an obligation for Compagnie de Saint-Gobain or any persons acting in concert to make a public takeover offer to the shareholders of Sika Ltd (see also news entry of 2 April 2015). William H. Gates III, Melinda French Gates and Cascade Investment L.L.C. filed an appeal against this decision. The FINMA Takeover Committee rejected this appeal in its decision of 4 May 2015.
Click here to view the decision.
Decision 600/01 dated 22 April 2015 in the matter of Kaba Holding Ltd
In its decision 600/01, dated 22 April 2015, in the matter of Kaba Holding Ltd, the Swiss Takeover Board held with view to the merger of Kaba Group with Dorma Group that the intended introduction of a formally selective opting-out clause and the conclusion of a transaction agreement, although basically qualifying as a defensive measure, are valid with respect to takeover law.
Click here to view the decision 600/01.
The FINMA Takeover Committee reviews the appeal against the decision 598/01 in the matter of Sika Ltd
William H. Gates III, Melinda French Gates and Cascade Investment L.L.C. lodged an appeal against the decision 598/01 of the Swiss Takeover Board, dated 1 April 2015, in the matter of Sika Ltd (see news entry dated 2 April 2015). The appeal is currently being reviewed by the FINMA Takeover Committee.
Click here to view the press release dated 13.04.2015.
Decision 594/03 dated 1 April 2015 in the matter of Sika Ltd
In its decision 594/03, dated 1 April 2015, in the matter of Sika Ltd, the Swiss Takeover Board dismissed an appeal filed by William H. Gates III, Melinda French Gates (as Trustees of the Bill & Melinda Gates Foundation Trust) and Cascade Investment, L.L.C. against decision 594/01 of 5 March 2015 in the matter of Sika Ltd.
Click here to view the decision 594/03.
Decision 598/01 dated 1 April 2015 in the matter of Sika Ltd
In its decision 598/01, dated 1 April 2015, in the matter of Sika Ltd, the Swiss Takeover Board held that the opting out clause of Sika Ltd (art. 5 of the articles of incorporation) is applicable in the case of the acquisition of the majority of the voting rights of Sika Ltd by Compagnie de Saint-Gobain and that this acquisition does not trigger an obligation for Compagnie de Saint-Gobain or any persons acting in concert to make a public takeover offer to the shareholders of Sika Ltd.
Click here to view the decision 598/01.
Decision 597/01 dated 23 March 2015 in the matter of Hoffmann & Co AG
In its decision 597/01, dated 23 March 2015, in the matter of Hoffmann & Co AG, the Swiss Takeover Board held that Hoffman & Co AG is suitably qualified in the sense of art. 30 para. 6 TOO to render fairness opinions in the context of public takeover offers.
Click here to view the decision 597/01.
Decision 525/02 dated 19 March 2015 in the matter of Schindler Holding Ltd*
In its decision 525/02, dated 25 March 2015, in the matter of Schindler Holding Ltd, the Swiss Takeover Board has authorised Schindler Holding Ltd to buy back a higher volume of shares per day in its current share buyback program than the maximum daily volume provided in art. 55b para. 1 letter c of SESTO.
Click here to view the decision 525/02.
Decision 595/01 dated 16 March 2015 in the matter of Actelion Ltd*
In its decision 595/01, dated 16 March 2015, in the matter Actelion Ltd, the Swiss Takeover Board has exempted the public share buyback program of Actelion Ltd from the provisions governing public takeover offers for a maximum volume of 10’000’000 registered shares corresponding to 8.76% of the capital and the voting rights. The Swiss Takeover Board took into account the remaining volume of another, already ongoing, share buyback program of Actelion Ltd and reviewed the new share buyback program on the basis of the total volume of all buyback programs of maximum 10.96% of the capital and the voting rights.
Click here to view the decision 595/01.
Decision 594/02 dated 9 March 2015 in the matter of Sika Ltd
In its decision 594/02, dated 9 March 2015, in the matter Sika Ltd, the Swiss Takeover Board has extended the deadline set in the decision 594/01 of 5 March 2015 for the publication of the opinion of the board of directors in the newspapers until 13 March 2015.
Click here to view the decision 594/02.
Decision 590/01 dated 20 February 2015 in the matter of LECLANCHÉ SA
In its decision 590/01, dated 20 February 2015, in the matter LECLANCHÉ SA, the Swiss Takeover Board held that the opting up clause in the articles of association of LECLANCHÉ SA is valid.
Click here to view the decision 590/01.
Decision 594/01 dated 5 march in the matter of Sika Ltd
In its decision 594/01, dated 5 march 2015, in the matter Sika Ltd, the Swiss Takeover Board held that the opting out clause in the articles of association of Sika Ltd is valid. Further, the Swiss Takeover Board held that in the case of an opting in (cancellation of the opting out and introduction of the obligation to make an offer, respectively) art. 22 para. 3 SESTA and the practice of the Swiss Takeover Board regarding the introduction of an opting out after a listing are not applicable.
Click here to view the decision 594/01.
* Decision not yet included in the Case Law Commentary on takeoverpractice.ch.