Recently, a second set of draft ordinances to the Federal Law on Stock Exchange and Securities Trading ("BEHG") has been published. Interested parties are invited to comment on these drafts by June 20, 1996. One of the draft ordinances was worked out by the Federal Banking Commission ("FBC") and deals with the provisions regarding the disclosure of participations and the obligation to make a tender offer once a participation reaches or exceeds a certain limit. At the same time, the Take-over Commission has published two draft ordinances, one regarding tender offers, the other regarding the organizational regulations of the Take-over Commission. Both draft ordinances have to be approved by the FBC before they can be put into force.
The content of the draft provisions regarding tender offers corresponds in general with the existing practice of the Regulation Commission which was developed under the still applicable Take-over Codex.
Of special interest are the draft provisions regarding "acting in concert". Pursuant to art. 11 and 26 of the FBC draft ordinance any of the following groups qualifies as "acting in concert":
(1) Any group that enters into or terminates a contractual relationship regarding the purchase or the sale of shares.
(2) Any group of shareholders that enters into or terminates contractual relationships regarding the exercise of their voting rights.
(3) Any group of companies ("Konzerne") including any companies which are owned by more than 50%.
Any group which is "acting in concert" has to disclose its participation once it reaches, exceeds or falls below a certain percentage of participation. In certain cases such groups are also obliged to make a tender offer. An important exception regarding the disclosure obligation exists for the purchase and the sale of shares among persons who have disclosed their aggregate participation. However, the term "acting in concert" is defined more broadly in the ordinance of the Take-over Commission (art. 12). Pursuant to the definition of the Take-over Commission, not only contractual relationships but also factual behavior coordinated in one way or another qualifies as "acting in concert".
The BEHG, which was approved by the Swiss Parliament at the end of 1995, shall replace the various Cantonal (or state) laws on stock exchanges now in force. According to the original plans of the Federal Finance Department ("FFD") and the FBC, the BEHG should have been put into force by mid 1996. A first set of ordinances to the BEHG has in part been criticized by the banks as well as the Swiss National Bank. The FFD does therefore not expect that the BEHG can be put into force before January 1997. The delay, however, does not cause too many problems because the beginning of the Swiss Electronic Exchange has also been delayed indefinitely. It is currently expected that the BEHG will be put into force in two steps: the first part on January 1, 1997 and the second part in spring 1997 together with the second set of ordinances.
A report prepared by Claude Lambert and Hans Caspar von der Crone, Homburger Rechtsanwaelte, Zurich.
The content of this article is to provide a general guide to the subject matter. Specialist advice should be sought in specific circumstances.