Opting-out (Swiss Stock Exchange Act)
In the Swiss Financial Market Infrastructure Act (FMIA) there is the option for a listed company to include a so-called opting-out clause in its articles of association (Art. 125 paras. 3 and 4 FMIA). This clause means that, contrary to Art. 135 FMIA, an acquirer does not have to make a public purchase offer to all holders of equity securities (so-called mandatory offer), even though he exceeds the threshold of 33 1/3% of the voting rights. This makes it possible for control of a listed company to pass to the buyer of a dominant portion of equity securities without the other owners of equity securities having to be involved. This right of self-determination for Swiss companies is unique internationally.
If there is an opting-out clause, a control premium can be paid to the previous main shareholders ( anchor shareholders ) in the event of a company takeover . A case study is the takeover offer from Saint-Gobain for the Swiss company Sika AG . In this case, the acquirer could have acquired a majority of votes of 52.4% by purchasing only 16.1% of the share capital. Only the family anchor shareholders would have benefited from the high takeover price, while the majority of the other shareholders would not have received an offer of equal value. In the meantime, this takeover dispute has been resolved through a compromise.
According to reports in connection with the planned takeover of Sika AG, 44 listed Swiss companies had such an opting-out clause in their articles of association at the end of 2014. The Ethos Foundation demands from the companies concerned that they remove the opting-out clauses from their statutes. After various attempts were made in the Swiss Parliament to change the relevant legislation, the Federal Council announced that the regulation regarding voting shares and the opting-out clause should be retained.
As a justification for the opting-out clause in family-run companies, reference is made to long-term comparative studies, which show that family-run companies are generally more profitable and better valued on the market than companies with free float. From this it is deduced that small shareholders therefore accept voting shares with more voting rights per capital investment than the other shares or participation certificates as well as opting-out clauses.
However, a publication for Swiss investors recommends that small investors not buy shares in companies that have both an opting-out clause and preferred voting shares.
Individual evidence
- ↑ Swiss Stock Exchange Act (SESTA, SR 954.1)
- ↑ Sergio Aiolfi: Opting -out has become a bad word. In Neue Zürcher Zeitung, January 17, 2015, p. 31
- ↑ Simon Schmid: Shareholders in the class war. In: Tages-Anzeiger , December 13, 2014, p. 49
- ↑ Sika wants to provide information at an investor presentation, Finanz & Wirtschaft , December 17, 2014
- ↑ Ernst Meier: I am proud that we withstood the pressure. Tagesanzeiger, May 12, 2018, accessed February 2, 2020
- ↑ Table of listed Swiss companies with opting-out or opting-up clauses ( memento of the original of May 18, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Ethos calls for the opting-out clauses to be deleted. December 12, 2014 ( Memento of the original from December 29, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Hansueli Schöchli: “Lex Sika” has little chance. Neue Zürcher Zeitung, August 28, 2015, p. 28 [1]
- ↑ Sergio Aiolfi: Companies don't need a fashionable straitjacket. In Neue Zürcher Zeitung, December 20, 2014, p. 23
- ^ Roberto Stefano: The family ties. In: Millionär - the trade newspaper's investor magazine. 02/2015, pp. 52-57
