FINMA Financial Market Infrastructure Ordinance
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
Section 1 Duty to make an Offer
Art. 30 Applicable provisions
(Art. 135 para. 4 FinMIA) In addition to Art. 135 FinMIA and the following provisions, Articles 125–134, 136–141, 152 and 163 FinMIA and the implementing provisions of the Federal Council and Takeover Board pertaining to public takeover offers apply to the duty to make an offer.
Art. 31 Principle
(Art. 135 paras. 1 and 4 FinMIA) The duty to make an offer is incumbent on any person who acquires equity securities directly or indirectly and, by doing so, exceeds the legal or statutory threshold under Article 135 paragraph 1 FinMIA (threshold).
Art. 32 Indirect acquisition
(Art. 135 paras. 1 and 4 FinMIA) Article 120 paragraph 5 FinMIA and Article 11 of this Ordinance apply by analogy to those holdings of the target company requiring an offer when making an indirect acquisition.
Art. 33 Acting in concert or as an organised group
(Art. 135 paras. 1 and 4, 136 para. 2 FinMIA) Article 12 paragraph 1 applies to persons acting in concert or as an organised group to acquire holdings requiring an offer with respect to the target company with the aim of controlling the target company.
Art. 34 Calculation of the threshold
(Art. 135 paras. 1 and 4 FinMIA) 1 The threshold is calculated based on the total number of voting rights in accordance with the entry in the commercial register. 2 When determining whether the threshold has been exceeded, all equity securities are taken into account which are owned by the acquiring person or whose voting rights have been transferred to the acquiring person in another way, regardless of whether the voting rights may be exercised. 3 Voting rights restricted to a power of attorney granted solely for the purposes of representation at one general meeting are excluded from the calculation.
Art. 35 Definition of the duty to make an offer
(Art. 135 paras. 1 and 4 FinMIA) 1 The duty to make an offer must be extended to all types of listed equity securities of the target company. 2 It must also include new equity securities created through equity derivatives, if the associated rights are exercised prior to expiry of the extension under Article 130 paragraph 2 FinMIA.
Art. 36 Transfer of the duty to make an offer to the acquiring person
(Art. 135 para. 4, 136 para. 2, 163 FinMIA) If the person previously entitled to the equity securities was subject to the duty to make an offer for all equity securities on exceeding the threshold of 50% of voting rights pursuant to the transitional regulation of Article 163 FinMIA, this duty passes over to the person acquiring a holding between 33⅓ and 50% of the voting rights, if that person is exempted from the duty to make an offer under Article 136 paragraph 2 FinMIA.
Art. 37 Resurgence of the duty to make an offer
(Art. 135 para. 4 FinMIA) A person who reduces a holding of 50% or more of the voting rights in a company acquired prior to 1 January 1998 to under 50% must make an offer under Article 135 FinMIA, if the said person's holding subsequently exceeds the threshold of 50%.
Art. 38 Duty to make an offer and conditions
(Art. 135 paras. 1 and 4, 136 para. 2 FinMIA) 1 The duty to make an offer may not be made subject to conditions unless there is good cause for doing so. 2 Good cause is particularly present if: a. an official authorisation is required for the acquisition; b. the equity securities to be acquired do not procure voting rights; or c. the offeror wants the specifically mentioned economic substance of the target company to remain unchanged.
Art. 39 Time period
(Art. 135 paras. 1 and 4 FinMIA) 1 The mandatory offer must be made within two months of exceeding the threshold. 2 The Takeover Board may grant an extension if there is good cause for doing so.
Section 2 Exceptions to the Duty to make an Offer
Art. 40 General exceptions
(Art. 135 para. 4, 136 FinMIA) 1 The duty to make an offer lapses, if: a. the threshold is exceeded during a restructuring resulting from a capital reduction immediately followed by a capital increase for the purpose of offsetting a loss; b. banks or securities firms under FinIA acting independently or as a syndicate acquire equity securities as part of an issue and undertake to sell the number of equity securities exceeding the threshold within three months after exceeding the threshold and the sale actually takes place within this period. 2 The claim to an exception under paragraph 1 or Article 136 paragraph 2 FinMIA has to be notified to the Takeover Board. The Takeover Board shall initiate an administrative procedure within five trading days if it has reason to suspect that the conditions in paragraph 1 are not met. 3 The Takeover Board may extend the period under paragraph 1 letter b upon application if there is adequate justification for doing so.
Para. 1 let. b — Amended by Annex No 5 of the FINMA O of 4 Nov. 2020 on Financial Institutions, in force since 1 Jan. 2021 (AS 2020 5327).
Art. 41 Particular exceptions
(Art. 135, 136 para. 1 FinMIA) 1 In the cases outlined under Article 136 paragraph 1 FinMIA and in other justified cases, a person obliged to make an offer may be exempted from the duty to make an offer if there is good cause for doing so. 2 Further justified cases under Article 136 paragraph 1 FinMIA are particularly those cases where: a. the acquiring person cannot control the target company because another person or group has a higher voting share; b. a member of an organised group in accordance with Article 136 paragraph 1 letter a FinMIA exceeds the threshold individually; or c. the previous acquisition was made indirectly (Art. 32), provided this acquisition is not one of the main purposes of the transaction and the interests of the target company's shareholders remain preserved. 3 When granting exceptions conditions may be attached; in particular the acquiring person may be made subject to certain obligations. 4 The conditions under paragraph 3 transfer to a legal successor who
Section 3 Determining the Offer Price
Art. 42 Stock exchange price
(Art. 135 paras. 2–4 FinMIA) 1 The offer price must be at least equal to the stock exchange price for every type of equity security in the target company. 2 The stock exchange price in accordance with Article 135 paragraph 2 letter a FinMIA corresponds to the volume-weighted average price of the on-order-book trades of the last 60 trading days prior to the publication of the offer or to the pre-announcement. 3 It must be adjusted to negate the effects of significant price influences triggered by special events, such as a dividend distribution or capital transactions, to which it is subject during this period. An audit firm in accordance with Article 128 paragraph 1 FinMIA must confirm the adequacy of the adjustment and show the calculation basis in its report. 4 If the listed equity securities are not liquid prior to the publication of the offer or the pre-announcement, the audit firm has to carry out a valuation of the company. The report shall outline the valuation methods and the ba
Art. 43 Price of the previous acquisition
(Art. 135 paras. 2–4 FinMIA) 1 The price of the previous acquisition under Article 135 paragraph 2 letter b FinMIA corresponds to the highest price paid by the buyer for equity securities in the target company over the past 12 months prior the to publication of the offer or to the pre-announcement. 2 It must be defined separately for each type of equity security. The price of the most expensive equity security relative to the nominal value shall form the basis for setting the appropriate ratio between the prices of different types of equity securities under Article 135 paragraph 3 FinMIA. 3 The equity securities in the target company acquired through the exchange of securities as part of the previous acquisition shall be calculated at their value at the time of the exchange. 4 If the person buying or selling has added other benefits in addition to the main payment for the previous acquisition, and in particular if the person has provided guarantees or benefits in kind, the price for th
Art. 44 Indirect prior acquisition
(Art. 135 paras. 2–4 FinMIA) 1 If the prior acquisition was indirect within the meaning of Article 32 in conjunction with Article 11 letter c, the offeror must disclose in the offer prospectus the share of the total price paid attributable to the target company's equity securities. 2 The valuation of this share must be audited by an audit firm.
Art. 45 Payment of the offer price
(Art. 135 paras. 2–4 FinMIA) 1 The offer price may be paid in cash or exchanged against securities. 2 Payment against exchange of securities is permitted provided full payment in cash is offered as an alternative.
Art. 46 Valuation of securities
(Art. 135 paras. 2–4 FinMIA) Article 42 paragraphs 2–4 apply to determining the value of the securities offered in exchange.
Art. 47 Exceptions
(Art. 135 paras. 2–4 FinMIA) The Takeover Board may grant exemptions from the regulations of this section (Art. 40–44) to the offeror in individual cases if there is good cause for doing so.