Obligation to make an offer under the Stock Exchange Act (Art. 32 SESTA)
The provisions governing public purchase offers
(SESTA[pdf], Chapter 5) apply
to all Swiss companies whose equity securities are, in whole or in part, listed on an exchange in
Switzerland (Art. 22 SESTA).
Accordingly, anyone acquiring more than 33 1/3% of the voting rights of a listed company is obligated to
make an offer to acquire all listed equity securities of said company (target company) that are admitted for
trading (Art. 32 SESTA).
However, the Stock Exchange Act does leave companies some room to manoeuvre with respect to the obligation
to make an offer: The material threshold value for triggering the obligation to make an offer of
33 1/3% of
the voting rights may be increased through corresponding provisions in the articles of
association to a
maximum of 49% ("opting up") or waived entirely ("opting out"). Hence, by opting
out, a company (target company) completely excludes the obligation to make an offer (Art. 53 SESTA in
conjunction with Art. 22 para. 3 SESTA).
According to the Federal Act on Stock Exchanges and Securities Trading (SESTA) the stock exchange shall
ensure that listed companies disclose whether they have made use of the right to opting-up or opting-up.
Thus issuers providing an opting-up or an opting-out in their articles of association have to report
such provisions to SIX Exchange Regulation (Art. 5 (3) SESTA in connection with
Circular No. 1, Annex 1, Point 3.05). Furthermore, every
amendment of the articles of association regarding the already
reported opting-out or opting-up provisions must be notified to SIX Exchange Regulation.
You can use the issuers search request to find out which Swiss
companies listed on the SIX Swiss Exchange have already made use of the opportunity to incorporate an opting up or
opting out clause in their articles of association.
| 
