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Fulfilment of Swiss takeover offer obligation by completing a merger
Meyerlustenberger Lachenal
  • Switzerland
  • 20 May 2020

The Takeover Board recently confirmed its case law on whether the obligation to make a public takeover offer may be fulfilled by completing a merger. However, the Takeover Board's arguments were based heavily on the specifics of the case at hand. It seems possible, if not likely, that the Takeover Board would have come to a different conclusion had the merger been structured differently.

COVID-19 Weekly Report (11-17 May 2020)
International Law Office
  • International
  • 18 May 2020

The impact of COVID-19 is being felt in almost every work area across the globe. In order to keep readers abreast of this evolving situation, ILO's COVID-19 Weekly Report provides insight into the major legal developments of the past seven days, as well as a round-up of our panel of experienced international legal commentators' legislative and regulatory guidance.

Support for start-ups in Switzerland
Meyerlustenberger Lachenal
  • Switzerland
  • 13 May 2020

Following the widespread outbreak of COVID-19 in Switzerland, the Federal Council implemented several emergency measures to mitigate the virus's economic impact. After weeks of pressure from the growing Swiss start-up ecosystem, the Federal Council acknowledged that start-ups had little or no access to the existing emergency aid and, considering their importance for the economy as a whole, stated that it would devise a liquidity support programme specifically designed for innovative start-ups.

Regulatory scrutiny of M&A transactions: Enterprise Act regime for government control over investment
Davis Polk & Wardwell LLP
  • United Kingdom
  • 06 May 2020

From the outset of a deal, the parties will be keen to understand whether regulatory approval is required or recommended to be obtained prior to closing, how long it will take to obtain approval and the ability of the relevant regulator to block the transaction or otherwise impose conditions to closing that may change the commercial terms of the deal (as well as the likelihood of the same). This article looks at the regime under the Enterprise Act 2002 for government control over investment in the United Kingdom.

Regulatory scrutiny of M&A transactions: Enterprise Act merger control regime
Davis Polk & Wardwell LLP
  • United Kingdom
  • 29 April 2020

Regulatory scrutiny is an increasingly important area of focus for buyers and sellers in M&A transactions. From the outset of a deal, the parties will be keen to understand whether regulatory approval is required or recommended to be obtained prior to closing, how long it will take to obtain approval and the ability of the relevant regulator to block the transaction or otherwise impose conditions to closing that may change the commercial terms of the deal. This article looks at the UK merger control regime under the Enterprise Act 2002.

COVID-19 Weekly Report (20-26 April 2020)
International Law Office
  • International
  • 27 April 2020

The impact of COVID-19 is being felt in almost every work area across the globe. In order to keep readers abreast of this evolving situation, ILO's COVID-19 Weekly Report provides insight into the major legal developments of the past seven days, as well as a round-up of our panel of experienced international legal commentators' legislative and regulatory guidance.

Regulatory scrutiny of M&A transactions: FSMA change in control regime
Davis Polk & Wardwell LLP
  • United Kingdom
  • 22 April 2020

Regulatory scrutiny is an increasingly important area of focus for buyers and sellers in M&A transactions. One area of scrutiny that frequently arises on the acquisition of UK businesses is the requirement to seek the consent of the Financial Conduct Authority or Prudential Regulation Authority to become a controller. This article looks at the Financial Services and Markets Act 2000 change in control regime.

Impact of COVID-19 on mergers and acquisitions
Kayum & Demir
  • Turkey
  • 22 April 2020

The COVID-19 pandemic is affecting not only public health, but also global business operations and the economic sector. In light of reports that mergers and acquisitions are being delayed, it is important to determine the impact of COVID-19 on M&A transactions and implement measures to mitigate the risks associated therewith. To that end, this article addresses whether COVID-19 qualifies as force majeure or hardship for contractual purposes and its impact on parties' mutual obligations.

Restructuring exemption in Swiss takeover law
Meyerlustenberger Lachenal
  • Switzerland
  • 01 April 2020

Under Swiss takeover law, the duty to launch a takeover offer is triggered when an acquirer of shares, whether acting directly, indirectly or in concert with third parties, acquires equity securities and thereby, in addition to the equity securities already owned, exceeds the threshold of 33.3% of the voting rights of a listed company. A recent Financial Market Supervisory Authority decision is a helpful reminder that the requirements for exemptions from the offer obligation must be assessed carefully on a case-by-case basis.

Jersey private investment funds – regulatory options
Ogier
  • Jersey
  • 25 March 2020

Jersey is long established as a primary centre for the establishment of offshore funds and has been at the forefront of international developments, which have attracted international sponsors, promoters, fund managers, advisers and investors. One of the key features of Jersey's fund industry is the flexibility and range of structures and corresponding regulatory and commercial approaches that can be used for funds.

Omnibus bill's likely impact on FDI open to interpretation
ABNR
  • Indonesia
  • 25 March 2020

The government recently submitted the Bill on Job Creation to the National Legislative Assembly. Both foreign direct investment and domestic investment are governed by the Investment Law 2007. While the bill envisages relatively few changes to the Investment Law overall, the proposed changes to its provisions on the Negative Investment List could be significant.

Private M&A transactions: new regulations strengthen French state control over foreign investments
AyacheSalama
  • France
  • 04 March 2020

Following the introduction of EU Regulation 2019/452 and the Action Plan for Business Growth and Transformation law, a new decree and ministerial order were published and will enter into effect on 1 April 2020. This new set of regulations takes into account the complexity of the existing structures of investment in private M&A transactions and allows a better understanding of the context of a contemplated transaction by the French administration.

Downstream mergers under Polish company law
Kubas Kos Gałkowski
  • Poland
  • 19 February 2020

The Code of Commercial Companies allows for mergers of both independent companies and related entities. Concerns arise when subsidiaries take over dominant companies (so-called 'reverse' or 'downstream' mergers) and the domination results in a subsidiary having a controlling shareholding package. While downstream mergers are admissible under Polish company law, a high level of uncertainty remains as to whether they will be accepted by a particular registry court.

Common pitfalls in M&A deals and how to avoid them
Kayum & Demir
  • Turkey
  • 19 February 2020

This article examines some of the key considerations for buyers and sellers when entering into an M&A transaction and how best to navigate deal-related risks. For example, in Turkey, M&A deals are generally not subject to regulatory approval. However, depending on the turnovers of the buyer, seller and target, a proposed transaction may be subject to Competition Board approval. Further, M&A deals in some regulated sectors (eg, energy and telecoms) must be approved by the governmental authorities.

New registration requirements for unregulated investment funds
Ogier
  • Cayman Islands
  • 12 February 2020

The government recently approved the Private Funds Bill 2020 and an amendment to the Mutual Funds Law (2020 Revision). The legislation is the result of certain EU and other international recommendations and has been developed to align the Cayman Islands investment fund regulatory regime with those of other jurisdictions. This article summarises the key features of both pieces of legislation.

Public M&A on trial: contested takeover schemes
Davis Polk & Wardwell LLP
  • United Kingdom
  • 29 January 2020

UK public takeovers can be structured either as a court-approved scheme of arrangement under the Companies Act 2006 or a contractual offer. This article examines two cases which highlight the types of objection raised by shareholders and provide an understanding of the approach taken by the English courts in applying their judicial discretion to sanction a scheme.

Private M&A deals: Supreme Court validates substitution clause in share purchase agreement
AyacheSalama
  • France
  • 18 December 2019

A recent Supreme Court decision validates the substitution mechanisms in the context of M&A transactions. The mechanism is particularly helpful in M&A transactions where a sponsor signs the initial agreements and, once a structure has been agreed, substitutes a special purpose vehicle to carry out the transaction. However, M&A practitioners should remain vigilant when drafting substitution clauses to ensure that they clearly state the parties' intentions as to the full release (or not) of the original party.

Takeover Panel imposes 'cold-shouldering'
Davis Polk & Wardwell LLP
  • United Kingdom
  • 04 December 2019

The Takeover Panel recently published a panel statement which provides helpful guidance on the factors that it will take into consideration when determining whether a person should be cold-shouldered. Cold-shouldering is the most serious disciplinary power available to the panel and has rarely been used – until now.

New crowdfunding platform regulations
Gorodissky & Partners
  • Russia
  • 16 October 2019

The president recently signed Federal Law 259-FZ of 2 August 2019 on Raising Investments via Investment Platforms and on Amending Certain Legislative Acts of the Russian Federation. The law, which is set to take effect from 1 January 2020, reflects the growing trend in Russia of increased regulation of digital economy issues.

Due diligence requirements regarding share ownership and related compliance in M&A transactions
Meyerlustenberger Lachenal
  • Switzerland
  • 16 October 2019

In Swiss M&A practice, share deals remain the most common method of acquiring a business from a third party for several reasons. Due to strict Federal Supreme Court precedents, legal due diligence regarding share ownership and related compliance has always been a fundamental component of legal due diligence in Swiss share deals. Recent legislative changes have further increased the importance of thorough due diligence in this regard.

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