Switzerland: Public Takeovers in Switzerland - Review 2008 (Part 2)

Best Price Rule

Distinction from Minimum Price Rule. If the bidder acquires equity securities of the target company in the period running from the publication of the offer until six months after expiry of the additional acceptance period at a price that exceeds the offer price, it must offer this price to all recipients of the offer (and not only to those who have accepted the public offer) ⁵⁵ (Art. 10 para. 6 OTB).

A share purchase by the bidder will only be subject to the minimum price rule (i.e., the bidder may pay a premium of up to 33 1/3% above the offer price), rather than both the minimum price rule and the best price rule, if such purchase qualifies as a purchase prior to the launch of the takeover offer. ⁵⁶ More particularly, if the share purchase agreement is entered into prior to the announcement of the takeover offer, and the closing under the share purchase agreement occurs

• prior to the announcement of the offer; or
• after the announcement of the offer and is not subject to any condition precedent or subsequent related to the success of the takeover offer, ⁵⁷

such share purchase will be considered to be a purchase prior to the announcement takeover offer, in the sense of Art. 41 OTB. Consequently, such share purchase will be relevant when assessing compliance with the minimum price rule (see above under Minimum Price Rule), ⁵⁸ but will not trigger the application of the best price rule.

However, if the bidder enters into a share purchase agreement with target shareholders prior to the announcement of the takeover offer, but the closing under the share purchase agreement is subject to the completion of the takeover offer (so called "coupled transaction"), ⁵⁹ such share purchase will trigger the application of the best price rule.

In general, a takeover offer may not be made conditional upon the closing of another share purchase without triggering the best price rule. In such a case, the conditions to closing under the share purchase agreement would become conditions to closing to the takeover offer. As a result, the bidder would make, as a commercial matter, the same offer to the shareholders to which the takeover offer is made as it made to the shareholders party to the share purchase agreement, but such shareholders would receive an offer price 25% lower than the offer price paid under the shareholders agreement. The TB therefore decided that any coupled transaction, straight or reverse, will trigger the best price rule, ⁶⁰ the only exception being conditions that are per se necessary for such share purchase to be completed (e.g., regulatory approval of the transaction). ⁶¹

Treatment of Employee Options. In change of control situations, employee stock option plans (ESOPs) often provide for an immediate vesting of the options granted to employees thereunder so that such employees can exercise such options to acquire shares and tender such shares in the takeover offer. If the bidder desires to acquire any such options not exercised during the offer period, the bidder must make certain that the price offered for such options is not above the offer price. ⁶² In accordance with the practice of the TB, the best price rule also applies to "out of the money" options. In order to determine whether a purchase of "out of the money" options complied with the best price rule, such options must be valued as of the date of the closing of the takeover offer, ⁶³ either based on the Black-Scholes or binomial model.

Application in Exchange Offers. In the case of an exchange offer, the offer price (relevant for as reference for the best price rule) usually develops in parallel with the price of the shares offered in exchange. If the shares offered in exchange are not listed, the TB has held that it is permissible to take the price of such as determined in the valuation report into account when calculating the offer price. ⁶⁴ However, since January 1, 2009, this issue is no longer relevant. Indeed, pursuant to the new Art. 43 para. 2 SESTO-FINMA, in the case of mandatory offers, settlement by means of exchange against securities is only permitted if a cash payment is offered as an alternative.

Additional Acceptance Period

Extension of Additional Acceptance Period. If the takeover offer is successful, the bidder must grant an additional acceptance period of 10 trading days from the date of publication of the definitive interim result (Art. 14 para. 5 OTB). In the matter sia Abrasives Holding AG, one of the bidders requested the extension of the additional acceptance period by 5 days arguing that the end of the period would fall in the Christmas and New Year holiday and that an extension would primarily be in the interest of the shareholders. The TB reasoned that when deciding whether to extend an additional acceptance period, the interest of the shareholders in a swift closing of the takeover offer should be weighed against the interest of the bidder in achieving a higher tender rate. Although the TB found the argument that the period ended in the Christmas and New Year holiday unpersuasive, it nevertheless granted the extension because, after giving effect to such extension, the closing of the takeover offer would still take place within the statutory period of 10 trading days after the end of the regular additional acceptance period and the interest of the shareholders remained protected. ⁶⁵

Conditions Conditions in Mandatory Offers. Unless important reasons can be demonstrated, a mandatory offer may not be subject to conditions (Art. 36 para. 1 and 2 SESTO-FINMA). In accordance with established practice, the TB confirmed in several matters that the closing of a mandatory offer may be subject to receipt of regulatory approval. ⁶⁶

Minimum Acceptance Level. According to the practice of the TB, a takeover offer's minimum acceptance level must not be so high that achieving such a level would appear impossible at the time it is set. ⁶⁷ As a general rule, a minimum threshold of 66 2/3% is deemed acceptable. ⁶⁸ However, in the matter Golay- Buchel Holding SA, the TB reaffirmed its practice of analyzing whether minimum acceptance levels are achievable or not on a case-by-case basis. In the Golay-Buchel Holding SA matter, the TB held that a minimum acceptance level of 90% appeared to be achievable at the time it was set because the securities of the target would be delisted and the shareholders' meeting of the target company had unanimously approved the bidder's acquisition of the target. ⁶⁹ Similarly, in the matter Growth Value Opportunities, the TB accepted an acceptance threshold of 90% because the bidder and the parties acting in concert collectively held a stake of 70% in the target at the time such threshold was set. ⁷⁰

MAC. The TB accepts "no material adverse change" (MAC) conditions to takeover offers, provided that the target's losses in turnover or profit reach a certain minimal level. In accordance with the practice of the TB, losses may be considered material if they reach at least 10% of the target's EBIT, EBITDA or NAV or at least 5% of the consolidated turnover of the target company. ⁷¹ In principle, MAC clauses that relate to general negative market incidents (e.g., the change of stock index), so-called "market-MAC's", are not permissible conditions to takeover offers, unless such incidents have a concurrent direct adverse effect on the target company itself. For example, a takeover offer may be subject to a market-MAC geared to the market value of a share portfolio on the balance sheet of the target company, provided the loss in market value has a direct effect on the net asset value of the target company, which effect is material. ⁷² Accordingly, in the case of an investment company whose value primarily consists of its net asset value, it is permissible to make the takeover offer subject to the condition that the target's net asset value will not drop by more than 10 % (which is, indirectly, a market-MAC). ⁷³

Removal of Voting and Transfer Restrictions. It is in the bidder's legitimate interest, and consequently permissible, to make the takeover offer conditional upon the shareholders' meeting amending the tar-get's articles of association to remove any existing restrictions on voting rights and the target registering such amendment with the commercial register. ⁷⁴ Similarly, the bidder may condition the takeover offer on the absence of new voting or share transfer restrictions. ⁷⁵ However, if the takeover offer is made subject to any such condition, the bidder must take all necessary measures to ensure that such condition is fulfilled. In particular, the bidder should include a covenant in the share purchase agreement, pursuant to which the target agrees to hold a shareholders' meeting and put such items on the agenda that are necessary to resolve to fulfill the relevant condition. ⁷⁶

Listing of the Bidder. In the matter Golay-Buchel Holding SA, in accordance with established practice, the TB confirmed that a takeover offer may be made conditional upon the listing of the bidder, provided the bidder takes all necessary measures to fulfill such condition. ⁷⁷ In the same matter, the TB confirmed that a takeover offer accomplished by way of an exchange offer may be made subject to the condition precedent that the bidder's share capital created for purposes of the exchange offer to be registered in the commercial register and that such registration would not be hindered by a possible registry ban. ⁷⁸

Equal Treatment

Employee Options. The principle of equal treatment applies only to securities to which the takeover offer was extended, including to financial instruments (Art. 10 para. 2 OTB). In the matter Speedel Holding AG, the bidder did not extend its offer to options granting the right to purchase shares of the target. Consequently, the TB ruled that the principal of equal treatment was not applicable to the options held by employees of Speedel. ⁷⁹

Adequacy of Offering Price

Various Securities Categories. Option rights are an own category of securities (Art. 2 OTB). To the extent the takeover offer extends to options on the target's shares, as well as the target's shares, the relationship between the offer price for such shares and the offer price for such options must be adequate. However, this requirement only applies if the takeover offer extends to both categories of securities. In the matter Speedel Holding AG, the takeover offer only extended to the target's shares, so the principal of adequacy between the prices for the various securities of the target did not apply. ⁸⁰

Defense Measures

During the period under review, no material recommendations and decisions, respectively, were issued relating to the defense measures of the target.

Board Report

In General. The target's board must publish a special report to its shareholders stating its position on the takeover offer. The report must contain all information necessary for the shareholders to make an informed decision whether or not to accept the offer, and such information must be accurate and complete.

Interim Report. The TB has confirmed its practice of requiring the target's board to publish interim financial statements if the offer period ends more than six months after the publication of the target's last financial statements. Such interim report must be published at least 10 days prior to the end of the offer period. ⁸¹ If publication within such time frame is not possible, the bidder must extend the offer period until such publication is possible. Such financial statements are not required to be audited, but must be prepared in accordance with the same accounting principles as the annual and semi-annual financial statements of the target. If less than six months have elapsed since the publication of the target's last financial statements, the target's board must at least confirm that the target's assets and liabilities, financial position, profits and losses, and prospects have not materially changed since such publication. If any such material changes occur prior to the end of the offer period, the board must update its report. Such material changes could include, for example, the target's acquisition of a company.

Conflict of Interests. The board report must also disclose possible conflicts of interests of its members and the target's senior officers. In the matters Growth Value Opportunities AG and Golay-Buchel Holding S.A., the TB stated that such disclosure must include, on an individual basis, the financial consequences of the takeover offer on the current target board members and senior officers, including information on severance payments, in particular on their amount. ⁸² In the case of any conflict of interest, the target's board must disclose any measures implemented to deal with such conflict. ⁸³

If any target board members have been elected with the votes of the bidder, there is a presumption that such board members are conflicted. ⁸⁴ However, the target board may provide evidence that such board members are, in fact, independent. ⁸⁵ This should be possible, for example, if the target board member is neither a member of the board or employee of the bidder nor has entered into a mandate agreement or entertains business relations with the bidder. On the other hand, if the target board member is, for example, chairman of the board of the bidder, it will be impossible to disprove the presumption that there is a conflict of interest. ⁸⁶ Conflicted board members may not participate in the preparation of the board report or vote thereupon.

Fairness Opinion. A common method employed to neutralize any conflicts of interest of target board members is to appoint an independent financial adviser and require the delivery of a fairness opinion. ⁸⁷ For instance, in the matter Golay-Buchel Holding SA, all four board members were conflicted, so the board commissioned an independent financial adviser to issue a fairness opinion regarding the financial adequacy of the takeover offer.

An expert mandated to write a fairness opinion regarding the financial adequacy of the takeover offer who is not regulated by a Swiss regulatory authority must be regulated by a foreign authority that is com- parable to the applicable Swiss authority. ⁸⁸ In the matters Ciba Holding AG and Speedel Holding AG, the TB held that the applicable regulation in the United Kingdom and supervision by the Financial Services Authority of the United Kingdom is comparable to the equivalent Swiss regulation and supervision. ⁸⁹

Duty to Update. Upon becoming aware of new information or facts, which are material to the decision process of the target's shareholders, the board or the bidder, as the case may be, must publish such new information or facts in the same form as its report or the offer prospectus, as applicable. ⁹⁰

Type of Consideration

During the period under review, no material recommendations and decisions, respectively, were issued relating to the type of consideration offered by the bidder.

Withdrawal of Takeover

Offer In the matter sia Abrasives Holding AG ⁹¹ , the TB reaffirmed that a sale of the qualifying stake triggering the mandatory offer to a third party does not extinguish the obligation to launch an offer. On the contrary, after giving effect to such sale, both the seller (i.e., the initial bidder) and the acquirer are obliged to launch a mandatory offer. ⁹² However, in the sia Abrasives Holding AG case, the TB granted the initial bidder who had sold its qualifying stake to a competing bidder an exemption from the rule requiring such initial bidder to publish the offer within 2 months after the purchase of the qualifying stake, ⁹³ provided that such bidder would still be required to launch an offer if the competing offer did not close. It is noteworthy that the new OTB, in force since January 1, 2009, no longer provides for the withdrawal of a takeover offer (see Art. 51 para. 1 of the old OTB).

Rights of Qualified Shareholders⁹⁴

General Rule. The amended OTB has significantly strengthened the rights of minority shareholders. As of January 1, 2009, every shareholder holding 2% or more of the voting rights of the target, whether exercisable or not, can be a party in the proceedings before the TB (qualified shareholder).

To be admitted as a party, a qualified shareholder must submit an application to the TB or timely raise an objection to the TB's orders. Both actions are possible at various stages of the takeover process, or, in the absence of a takeover offer, when large shareholders of the target seek confirmation from the TB that they are not required to submit a mandatory offer to the other shareholders (Art. 57 para. 1 lit. a OTB). The only material condition to a shareholder's admittance (and maintenance of such admittance) as a party is that such shareholder holds 2% or more of the voting rights of the target. However, a shareholder will only be admitted as a party if it held a stake of at least 2% at the time of the publication of the preliminary announcement, if any, or the offer prospectus and continues to hold such stake throughout the proceeding. A shareholder may not gain admittance as a party as a result of subsequent stake-building.

An application to be admitted as a party must be filed with the TB within 5 trading days after

• the earlier of (i) publication of the first order of the TB relating to the takeover (e.g., orders relating to the preliminary announcement) or (ii) the publication of the offer prospectus; or
• publication of the target board report in a procedure relating to an exemption from, or the non-existence of, an offer obligation.

Provided the shareholder holds the required stake, upon timely filing of the application, the TB will grant the shareholder the status of a party in the proceedings and the right to be heard. Shareholders that become parties to the proceedings are entitled to participate in the proceedings, have access to the TB's file, and are entitled to challenge any orders of the TB before the FINMA and, on appeal, with the FAT.

A shareholder's objection to the TB's orders must be raised

• in the case of the first order of the TB relating to the takeover offer, which order is published prior to or simultaneously with the offer prospectus (i.e., only in the case of prior approval of the prospectus), within 5 trading days after the date of such publication; or
• in the case of an order regarding an exemption from, or the non-existence of, an offer obligation (i.e., only in the absence of a takeover offer), within 5 trading days after publication of the report of the target board.

Any such objection may only be raised by qualified shareholders who have previously not submitted an application to the TB for admittance as a party, and must include a demand, the reasons for objecting and evidence of at least a 2% stake as of the relevant date.

Pre-Clearance of the Prospectus with the TB. Pursuant to Art. 57 para. 1 lit. a OTB, a qualified shareholder cannot become party to a proceeding prior to the earlier of (i) the publication of the offer prospectus and (ii) the publication of a decision by the TB. In the matter Harwanne, the TB denied party status to a shareholder who had filed its application prior to the publication of the offer prospectus and prior to the publication of the TB's decision. However, the TB admitted such shareholder as a party to the proceeding once the offer prospectus had been published. ⁹⁵

This means that in cases where the bidder submits the offer prospectus to the TB for pre-clearance in accordance with Art. 59 OTB, qualified shareholders - even if aware of such submission, e.g., because the bidder has already published a preliminary announcement - may not yet be a party to the procedure at this stage. Indeed, at this stage, the interests of the shareholders are protected by the Review Body, the target company, which is invited to comment on the offer prospectus, ⁹⁶ and the TB itself. Qualified shareholders may object only after publication of the TB's decision on the offer prospectus. This could in practice burden their position, because the TB will have to decide on the legality of the offer without having heard the contrary position of the qualified shareholders. This might require an enhanced level of arguments from the qualified shareholders in order to reverse the first decision of the TB, but the Harwanne case has shown that the TB is not necessarily sticking to a first position after having heard the qualifying shareholders, even if the arguments put forward by the shareholders were already of public knowledge at the time when the TB issued its first decision. ⁹⁷

Suspensive Effect of the Appeal to the FINMA. Since January 1, 2009, the TB is no longer issuing recommendations, but decisions according to Federal Act on the Administrative Procedure (AAP) (Art. 33b SESTA) and such decisions may be appealed before the FINMA. In principle, an appeal against a decision of the TB has a suspensive effect, but the TB has the power to withdraw such suspensive effect to the extent such decision is not about a monetary claim (Art. 55 para. 2 AAP). In the Harwanne case, the TB did so and ordered MMA to arrange for a valuation of the shares of the target even before the issue at stake, i.e. the liquidity of the target shares, is definitively solved. The FINMA reinstituted the suspensive effect to the appeal of MMA (Art. 55 para. 3 AAP), ⁹⁸ but dismissed the appeal on the question of the liquidity of the shares. Therefore, MMA appealed before the Federal Administrative Tribunal. Such appeal has no suspensive effect (Art. 33d para. 2 SESTA) and the FAT may not, unlike the FINMA, reinstitute it, neither directly by order nor indirectly by granting a request for provisional measures which would have the same aim. ⁹⁹

Procedure Before the FAT. The procedural standstill rules of the AAP are not applicable to procedures and appeals before the TB and the FINMA, respectively (Art. 33b para. 4 SESTA and Art. 33c para. 3 SESTA). Furthermore, the deadline to submit an appeal before the FINMA is only five trading days. This results usually in very fast procedures before the TB and the FINMA. However, such speed is halted before the FAT: the deadline to appeal is ten calendar days, which is still a relatively short deadline, but the normal procedural standstill rules (Easter, Christmas, summer holidays, etc) apply again. Therefore, in case a standstill is applicable, the cooling off period, and thereby the start of the takeover offer, would be extended until the question in dispute is definitively solved, provided of course such element is material to the offer (e.g., the offer price as in the Harwanne case).

Repurchase of Own Shares

General. Public offers by a company to repurchase its own shares (including an announcement of its intention to repurchase such shares via the stock exchange) represent "public takeover offers" within the meaning of Art. 2 lit. e SESTA and, therefore, are subject to the provisions of the Swiss takeover rules. The TB may, on a case-by-case basis, exempt such a repurchase offer from the provisions governing public takeover offers, provided that equality of treatment, transparency, integrity and good faith are ensured and there is no evidence that the company is circumventing the SESTA or any other legal provisions. In 2000, the TB adopted Communication No. 1, which sets out the conditions of such an exemption. ¹⁰⁰

First, repurchases representing a maximum of 2% of the bidder's capital are exempt from the regulations governing public takeover offers and are not required to be announced to the TB. Repurchases representing more than 2% but less than 10% of the bidder's capital may be exempted by the TB via the so-called reporting procedure. In general, if a bidder fulfils the conditions of Communication No. 1 and did not apply for any exemption from any such conditions, the procedure is closed without the issuance of a decision by the TB.

Buy-back of 10% or more of Share Capital. According to Communication No.1 of the TB, repurchases of 10% or more of a company's share capital are subject to the takeover regulations, unless the TB grants an exemption based on the objectives of the SESTA (i.e., equal treatment, transparency, loyalty and good faith). In the matter Partners Group Holding AG, the TB granted the company an exemption under Communication No.1 for a repurchase program for up to approximately 18% of its share capital. ¹⁰¹ Although the TB held that the 10% limit on own shares under Art. 659 CO is applicable to share buybacks, it stated that, in the case of a share buyback programme aimed at a capital reduction, exceeding such 10% limit is permissible if the company complies with the capital reduction requirements of Art. 732 CO (i.e., an auditors' report confirms that all creditors' claims are covered despite the capital decrease; based on this report, the shareholders' meeting resolved on the capital decrease; a notice to creditors was published three times in the Swiss official commercial gazette and two months have lapsed since the publication of the third notice). The TB found that the buyback programme proposed by Partners Group Holding AG complied, in principle, with such capital reduction requirements, however, it required the company to fulfil two additional conditions: (i) the board of directors must remove the statement in the invitation of the shareholders' meeting that the repurchased shares would be resold, and (ii) the auditors' report must confirm that all creditors' claims would be covered if the entire repurchase volume was cancelled at the time of such report is issued. ¹⁰²

In the matter Athris Holding AG, Athris Holding intended to buy back up to 45 % of its share capital. Although the TB stated that it is problematic to grant an exemption from the regulations governing public takeover offers for the buyback of shares if such buyback would result in a significant change in control or an excessive reduction of the free float, ¹⁰³ the TB granted Athris Holding an exemption based on cipher IV. of Communication No. 1. ¹⁰⁴ The TB granted the exemption based on two arguments. First, the share buyback would not result in a change in control. The only purpose of the share buyback was to reduce Athris Holding's capital. Consequently, the mandatory offer threshold would be exceeded only temporarily, which, pursuant to Art. 32 para. 2 lit. c SESTA, is a reason to grant an exemption from a mandatory offer. Furthermore, after giving effect to the share buyback, one of Athris Holding's shareholders, Pelham Investments AG, would still hold a higher percentage of votes than Athris Holding (Art. 34 para. 2 lit.a SESTO-FBC, now Art. 39 para. 2 lit. a SESTO-FINMA), and, because Pelham would still be the controlling shareholder of Athris Holding, Athris Holding and Pelham would continue to constitute a group and, consequently, Athris Holding would be able to take advantage of the exemption granted to individual members of a group who exceed the threshold (Art. 34 para. 2 lit.b SESTOFBC, now Art. 39 para. 2 lit. b SESTO-FINMA). Second, in its request filed with the TB, Athris Holding had undertaken to permanently engage a bank as market maker, which the TB held was an adequate measure to ensure the free float of the shares after giving effect to the share buyback. ¹⁰⁵

Interruption during Black-out Periods. According to Communication No. 1 of the TB, the company must halt repurchases:

• if the company delays the disclosure of information considered price-sensitive under the regulations of the stock exchange on which the shares are listed;

• during the ten trading days prior to publication of the company's financial results;

• if more than nine months have elapsed since the date of reference for the company's most recently published consolidated financial statements.

Swiss Life Holding AG and Julius Bär Holding AG applied for an exemption from the obligation to halt repurchases due to a disclosure delay of certain price sensitive information. Specifically, they argued that they are constantly evaluating new acquisition opportunities and strategic projects and, therefore, often in possession of price-sensitive information that would require the interruption of their repurchase programmes. Such constant interruptions would materially jeopardize the repurchase programme and raise unwarranted speculation in the market. Both applicants proposed to outsource the buyback programme to a bank that would not be subject to instruction by the issuer. Furthermore, Julius Bär stated that it would establish Chinese walls in order to ensure that price-sensitive information is restricted to a defined group of persons, both within Julius Bär and the bank performing the buyback on its behalf. ¹⁰⁶

Based on EU regulations, the TB accepted the arguments regarding the independence of a third party bank executing the buyback programme for Swiss Life Holding AG and the use of Chinese walls within Julius Bär, as issuer under, and the third party bank executing, the buyback programme, and granted the exemption to both applicants. ¹⁰⁷

Change of Purpose of Share Buyback. In two cases (Swiss Re and Zurich Financial Services), ¹⁰⁸ the TB examined a change in purpose of the relevant buyback programme. In line with the SESTA's principles of loyalty and transparency, a company must disclose the purpose of any buyback programme, irrespective of whether such programme is exempt from the takeover rules pursuant to the reporting procedure under Communication No. 1 or an exemption granted by the TB. The purpose must be stated in the notice that is published with the launch of the buy-back programme. A buyback programme may only deviate from its published purpose if such deviation is objectively justified and published in the same manner as the original purpose.

In both cases, the buyback programmes were launched in order to achieve a capital decrease through the cancellation of shares. However, both issuers subsequently alleged that economic circumstances had changed and, consequently, that they should be permitted to re-issue the repurchased shares in order to raise additional funds or use them as acquisition currency. The TB granted both issuers an exemption, and noted that a buyback programme can last up to three years, during which time the economic situation of the issuer, or market conditions, can substantially change.

Footnotes

55 Recommendation 342/01 of the TB dated November 16, 2007 in the matter Implenia AG, c.6, confirmed by the FBC in a decision of December 20, 2007.

56 Art. 32 para. 4 SESTA in connection with Art. 41 para. 1 SESTO-FINMA.

57 The purchase may still be subject to a regulatory condition necessary for such share purchase and independent from the takeover offer.

58 Decision 403/01 of the TB dated February 26, 2009 in the matter Harwanne Compagnie de participations industrielles et financières, c.4.2.2, confirming recommendation 307/01 of the TB dated January 8, 2007 in the matter Bank Sarasin & Cie, c.3; recommendation 318/04 of the TB dated June 9, 2007 in the matter Converium Holding AG, c.9.2; recommendation 227/01 of the TB dated March 9, 2005 in the matter Büro-Furrer AG, c.2.

59 Recommendation 322/01 of the TB dated August 22, 2007 in the matter Unilabs SA, c.2.5; recommendation 307/01 of the TB dated January 8, 2007 in the matter Bank Sarasin & Cie, c.3; recommendation 318/04 of the TB dated June 9, 2007 in the matter Converium Holding AG, c. 9.2 confirming e.g. recommendation 227/01 of the TB dated March 9, 2005 in the matter Büro-Fürrer AG, c.2 and recommendation 236/01 of the TB dated April 28, 2005 in the matter Swiss International Air Lines AG, c.6.2.

60 Recommendation 322/01 of the TB dated August 22, 2007 in the matter Unilabs SA, c.2.5.

61 Decision 403/01 of the TB dated February 26, 2009 in the matter Harwanne Compagnie de participations industrielles et financières, c.4.2.2, confirming recommendation 322/01 of the TB dated August 22, 2007 in the matter Unilabs SA, c.2.8 and recommendation 307/01 of the TB dated January 8, 2007 in the matter Bank Sarasin & Cie, c.3.

62 Decision 378/02 of the TB dated January 20, 2009 in the matter Speedel Holding AG, c.2.1, confirming recommendation 260/02 of the TB dated January 11, 2006 in the matter Berna Biotech AG.

63 Decision 378/02 of the TB dated January 20, 2009 in the matter Speedel Holding AG, c.2.1.

64 Recommendation 387/01 of the TB dated October 17, 2008 in the matter Golay-Buchel Holding SA, c.6.

65 Recommendation 384/03 of the TB dated November 18, 2008 in the matter sia Abrasives Holding AG, c.9.

66 Decision 406/01 of the TB dated March 17, 2009 in the matter of Hammer Retex Holding AG, c.8.1; recommendation 382/01 of the TB dated September 26, 2008 in the matter of Ciba Holding AG, c.5.2.

67 Recommendation 382/01 of the TB dated September 26, 2008 in the matter of Ciba Holding AG, c.5.1.

68 Recommendation 348/01 of the TB dated January 7, 2008 in the matter of SEZ Holding AG, c. 5.2; recommendation 358/01 of the TB dated April 3, 2008 in the matter Groupe Baumgartner Holding SA, c.5.2.

69 Recommendation 387/01 of the TB dated October 17, 2008 in the matter Golay-Buchel Holding SA, c.7.1.

70 Recommendation 371/02 of the TB dated June 13, 2008 in the matter Growth Value Opportunities, c.5.1.

71 Recommendation 382/01 of the TB dated September 26, 2008 in the matter of Ciba Holding AG, c.5.6; recommendation 358/01 of the TB dated April 3, 2008 in the matter Groupe Baumgartner Holding SA, c.5.7 and 5.8.

72 Recommendation 371/01 of the TB dated June 5, 2008 in the matter of Growth Value Opportunities SA, c.2.

73 Recommendation 371/01 of the TB dated June 5, 2008 in the matter of Growth Value Opportunities SA, c.2.

74 Recommendation 358/01 of the TB dated April 3, 2008 in the matter of Groupe Baumgartner Holding SA, c.5.4.

75 Recommendation 348/01 of the TB dated January 7, 2008 in the matter of SEZ Holding AG, c.5.6; recommendation 382/01 of the TB dated September 26, 2008 in the matter of Ciba Holding AG, c.5.3.

76 For details, see recommendation 358/01 of the TB dated April 3, 2008 in the matter of Groupe Baumgartner Holding SA, c.5.4; recommendation 348/01 of the TB dated January 7, 2008 in the matter of SEZ Holding AG, c.5.6.

77 Recommendation 387/01 of the TB dated October 17, 2008 in the matter Golay-Buchel Holding SA, c.7.3.

78 Recommendation 387/01 of the TB dated October 17, 2008 in the matter Golay-Buchel Holding SA, c.7.2.

79 Decision 378/02 of the TB dated January 20, 2009 in the matter of Speedel Holding AG, c.2.2.

80 Decision 378/02 of the TB dated January 20, 2009 in the matter of Speedel Holding AG, c.2.3.

81 Decision 411/01 of the TB dated June 19, 2009 in the matter of Métraux Services SA, c.6.1; recommendation 378/01 of the TB dated August 8, 2008 in the matter of Speedel Holding AG, c.7.1; recommendation 382/01 of the TB dated September 26, 2008 in the matter of Ciba Holding AG, c.6.1; recommendation 384/03 of the TB dated November 18, 2008 in the matter of sia Abrasives Holding AG, c.7.1.

82 Recommendation 371/02 of the TB dated June 13, 2008 in the matter Growth Value Opportunities SA, c. 6.2; recommendation 387/01 of the TB dated October 17, 2008 in the matter Golay-Buchel Holding S.A., c. 8.2.

83 Recommendation 371/02 of the TB dated June 13, 2008 in the matter Growth Value Opportunities SA, c. 6.2.

84 Recommendation 371/02 of the TB dated June 13, 2008 in the matter Growth Value Opportunities SA, c. 6.2.

85 Recommendation 371/02 of the TB dated June 13, 2008 in the matter Growth Value Opportunities SA, c. 6.2.

86 Recommendation 371/02 of the TB dated June 13, 2008 in the matter Growth Value Opportunities SA, c. 6.2.

87 See e.g. recommendation 387/01 of the TB dated October 17, 2008 in the matter of Golay-Buchel Holding SA, c.8.2.

88 Recommendation 382/01 of the TB dated September 26, 2008 in the matter of Ciba Holding AG, c.6.2; recommendation 378/01 of the TB dated August 8, 2008 in the matter of Speedel Holding AG, c.7.2.

89 Recommendation 382/01 of the TB dated September 26, 2008 in the matter of Ciba Holding AG, c.6.2.

90 Recommendation 384/03 of the TB dated November 18, 2008 in the matter sia Abrasives Holding AG, c.7.4.

91 Recommendation 384/03 of the TB dated November 18, 2008 in the matter sia Abrasives Holding AG, c.10.

92 The practice was established in the recommendation 314/03 of the TB dated June 28, 2007 in the matter GNI Global Net International AG, c.2.3.

93 Recommendation 384/03 of the TB dated November 18, 2008 in the matter sia Abrasives Holding AG, c.10.

94 See in general, Flavio Romerio/Frank Gerhard, Harwanne – Erster Testfall für die neue Verfahrensordnung im Übernahmerecht, in: GesKR 3/2009, p. 355-362.

95 Decision 403/02 of the TB dated March 16, 2009 in the matter of Harwanne Compagnie de participations industrielles et financières, c.1.

96 Decision 403/01 of the TB dated February 26, 2009 in the matter of Harwanne Compagnie de participations industrielles et financières, lit. H and c.1.

97 Decision 403/02 of the TB dated March 16, 2009 in the matter of Harwanne Compagnie de participations industrielles et financières.

98 See decision of the FINMA dated March 27, 2009 in the same matter.

99 See decision of the FAT dated May 11, 2009 in the same matter.

100 This Communication No. 1 is currently under review and the TB has published a new draft thereof on April 24, 2009.

101 Recommendation 408/01 of the TB dated April 2, 2009 in the matter of Partners Group Holding AG, c.4.

102 Recommendation 408/01 of the TB dated April 2, 2009 in the matter of Partners Group Holding AG, c.2. This new practice has been confirmed in the recommendation 414/01 dated May 29, 2009 in the matter shaPE Capital AG.

103 Thereby, the TB confirmed its previous practice, see e.g. recommendation 366/01 of the TB dated March 27, 2008 in the matter of Swiss Life Holding AG, c.3.

104 Recommendation 404/01 of the TB dated September 26, 2008 in the matter Athris Holding AG, c.2.3.

105 Recommendation 404/01 of the TB dated September 26, 2008 in the matter Athris Holding AG, c.2.2.2 and 2.2.3.

106 Recommendation 366/01 of the TB dated March 27, 2008 in the matter of Swiss Life Holding AG, c.4; recommendation 361/01 of the TB dated March 27, 2008 in the matter of Swiss Life Holding AG, c.3.

107 See Art. 6 para. 1 lit.b of the Commission Regulation (EC) No 2273/2003 of December 22, 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards exemptions for buy-back programmes and stabilisation of financial instruments, which prohibits trading during a closed period, but which grants exemption for buy-back programmes outsourced to a third party who is not bound by instructions (Art. 6 para. 3 lit. b of the Commission Regulation) or performed by a bank as issuer with internal Chinese Walls (Art. 6 para. 2 of the Commission Regulation).

108 Recommendation 355/01 of the TB dated February 17, 2009 in the matter of Schweizerische Rückversicherungs-Gesellschaft; recommendation 353/01 of the TB dated February 27, 2009 in the matter of Zurich Financial Services.

* This Bulletin is the fourth prepared by Frank Gerhard | Flavio Romerio on this topic. See Public Takeovers in Switzerland – Review 2005, dated March 16, 2006, Public Takeovers in Switzerland – Review 2006, dated September 13, 2007, and Public Takeovers in Switzerland – Review 2007, dated June 17, 2008, all available at www.homburger.ch.

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