Rs 954.193 Order Of 25 October 2008 Of The Federal Authority Monitoring Capital Markets On Stock Exchanges And Trade In Securities (Order Of The Finma On Stock Exchanges, Sesto-Finma)

Original Language Title: RS 954.193 Ordonnance du 25 octobre 2008 de l’Autorité fédérale de surveillance des marchés financiers sur les bourses et le commerce des valeurs mobilières (Ordonnance de la FINMA sur les bourses, OBVM-FINMA)

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[954.193] order of the federal authority for oversight of capital markets on stock exchanges and trade in securities (Ordinance of the FINMA on stock exchanges, SESTO-FINMA) of October 25, 2008 (status December 16, 2014) the federal supervisory authority of financial markets (FINMA), see art. 15, al. 3, 20, al. 5, and 32, al. 2 and 6, of the Act of 24 March 1995 on scholarship (SESTA), stop: Chapter 1 Obligations for traders to keep a diary and to declare Section 1 Obligation to keep a journal article 1 (art. 15 SESTA) as a general rule, the dealer holds a newspaper or partial newspapers (newspaper) in which it records the orders he received and transactions in securities, he has performed on the stock exchange and off-Exchange, that these securities are admitted or not to trading of a stock exchange.
The following information shall be entered in the journal for orders received: a. identification of securities; b. date and time of receipt of the order; (c) the identity of the originator; (d) the type of transaction and the nature of the order; (e) the size of the order.

The following information shall be entered in the journal for transactions: a. the date and precise time of the transaction; b. the size of the transaction; c. the course completed or assigned (d) the location of the transaction; e. identity of the consideration; f. the date value.

Generally speaking, orders and transactions, they must be declared or not under section 2, must be registered in a standardized form, to ensure complete information can immediately be sent to FINMA when it does.
FINMA rule other terms in a circular, including the scope of application of the obligation to keep a diary as well as the presentation and content of the journal.

Section 2 duty to report art. 2 principles (art. 15 SESTA) as a general rule, the trader must declare all its transactions, stock exchange and off-Exchange, dealing with securities admitted to trading in a Swiss stock exchange.
He stated in particular: a. all transactions traded over-the-counter, and performed in Switzerland dealing securities Swiss or foreign admitted to trading in a Swiss Stock Exchange; b. all transactions, IPO and OTC, completed abroad dealing securities Swiss or foreign admitted to trading in a Swiss stock exchange, except transactions covered by art. 3, let. a and b.

Both transactions on behalf of the trader that those on behalf of third parties must be reported.

Art. 3 exceptions (art. 15 SESTA) the dealer should not declare: a. transactions made abroad on foreign securities admitted to trading in a Swiss stock exchange, as soon as they are made with a foreign exchange recognised by the Switzerland; b. transactions made abroad to securities admitted to trading in a Swiss stock exchange, as soon as they are made by the branch of a Swiss dealer who is authorized by a foreign supervisory authority to practice trading in securities and which is subject to the obligation to keep a journal on the spot or declare its transactions; c. transactions dealing with values securities not admitted to trading in a Swiss stock exchange.

Art. 4 contents of the statement (art. 15 SESTA) the statement must contain the following information: a. the identity of the dealer under the obligation to report transactions; b the type of transaction (purchase or sale); (c) the identification of the securities traded; d. size of the transaction (face value for bonds, number of pieces or contracts for other securities) e. courses; (f) the date and precise time of the transaction; g. date value; h. will he is a transaction on behalf of the dealer or on behalf of third parties; i. the identity of the counterparty (member of the stock exchange, another merchant, client); j. identification of the stock market.

Art. 5 statement time (art. 15 SESTA) transactions must be reported within the timeframe set by the stock market regulations.

Art. 6 recipient of declarations (art. 15 SESTA) as a general rule, the transactions must be reported to the stock exchange where the securities are admitted to trading.
When a security is trading with several scholarships in Switzerland authorized by FINMA, traders involved in off-exchange transactions may choose the scholarship for which they intended their statement.
Scholarships provide a particular service to receive and process returns (instance for declarations) in their organization.
The forum for declarations shall draw up regulations. It can seek fair compensation for the performance of the tasks entrusted to him by the FINMA. Rates are subject to the FINMA for approval.

Chapter 2 round of correspondence and calculation of time art. 7 round of correspondence (art. 20 al. 5, SESTA) statements, requests and submissions relating to the disclosure of shareholdings and public tender can be sent to FINMA, the Commission of the public acquisition offers and instances for the disclosure of shareholdings by fax or by electronic means and make faith for the respect of the deadlines. The original document must be sent no later than the following working day.
As a general rule, decisions and recommendations relating to the procedures referred to in para. 1 are notified to the parties, applicants and the FINMA by fax or electronic means.

Art. 8 calculation of time (art. 20, para. 5, SESTA) when a period is calculated in trading days, it begins to run the first trading day following the fact trigger.
When a period is calculated in weeks, he ends the same day of the week as the day trigger or, if the stock market is closed, the next trading day.
When a period calculated in months, it expires the same day of the month than the fact trigger or, failing that, the last day of the month. If the stock market is closed on that date, the period shall end on the next trading day.
"Trading days", refers to the days where the concerned Exchange is open for trading on the stock market according to his trading calendar.

Chapter 3 disclosure of shareholdings Section 1 Obligation to report art. 9 principle (art. 20, para. 1 and 5 SESTA) the obligation to report is the responsibility of the beneficial owners who acquire or alienate, directly or indirectly, equity and whose participation, therefore, reached, exceeds or falls below the thresholds of the art. 20, al. 1, SESTA (thresholds).
Anyone who reaches a threshold or crosses, upward or downward, by acquisition or disposal of securities of participations on behalf of several independent beneficial and has corresponding voting rights is also required to declare.
Constitutes an acquisition or indirect disposition: a. the acquisition and alienation through a third party legally acting in his own name, but on behalf of the beneficial owner; (b) the acquisition and alienation by legal persons dominated directly or indirectly; c. the acquisition and alienation of a dominant, direct or indirect participation, in a legal person who holds, directly or indirectly the equity securities; (d) any other method which, finally, can confer the right to vote on equity securities, with the exception of powers of attorney conferred exclusively for purposes of representation at a general meeting.

There is no obligation to declare: a. when a threshold, said because reached, is then reached upward unless the next threshold is reached or crossed; b. when a threshold, said because only reached or crossed on the rise, is reached again downward without the next threshold has been reached or crossed; c. when a threshold is temporarily reached or crossed downward or upward, in the course of a trading day (intraday).

New content according to section I of the FINMA on nov 23 O. 2011, in force since Jan. 1. 2012 (2011 6285 RO).

Art. 10 acting in concert with third parties and organized groups (art. 20, para. 1, 3 and 5, SESTA) anyone who gives his behavior with that of third parties, by contract or by other measures taken in an organized manner, to acquire or dispose of securities or exercise voting rights is deemed act together with any third party or constitute an organized group.
Represent such an agreement including: a. legal reports whose object is the acquisition or alienation of equity securities; b. legal reports whose purpose is the exercise of the voting rights (voting shareholder agreements); OUC. the constitution by individuals or legal entities of a group of companies or businesses, dominated through the holding of the majority of the capital or of the voting rights, or in some other way.

Any person acting in concert with third parties or organized group must declare global participation, the identity of its members, the type of consultation, and representatives.
It is not necessary to declare an acquisition or alienation between people who reported their overall participation.

Changes to the circle of these people and the type of consultation or group must be reported.

Art. 11 birth of the obligation to report (art. 20, para. 1 and 5 SESTA) the obligation to declare is born at the time of the constitution of the right to acquire or dispose of securities (conclusion of the contract). Demonstrate its intention, without legal obligation, to acquire or dispose of securities or does not rise to the duty.
When a threshold is reached or crossed, upward or downward, as a result of an increase, a reduction or restructuring of the share capital, reporting begins at the date of publication of the event in the Swiss Official Journal of commerce for companies located in Switzerland. The obligation to report companies headquartered abroad and whose securities are rated primarily in Switzerland, partially or entirely, begins at the date of publication according to art. 53b, al. 3, of the order of 2 December 1996 on scholarships.

RS 954.11 new content according to chapter I of the O of the FINMA on March 21, 2013, in force since May 1, 2013 (RO 2013 1117).

Art. 12 calculation of thresholds (art. 20, para. 1 and 5 SESTA) anyone who reaches a threshold or crosses, upward or downward, in one of the positions below must determine the size separately and independently of the other, then declare them simultaneously: a. purchase positions: 1 stocks and shares similar to action, 2-rights Exchange and acquisition (art. 15 al. 1, let. (a), 3. rights of alienation issued (art. 15, para. 1, let. b), 4. financial instruments, which allow a direct or indirect acquisition (art. 15, para. 1, let. c), 5. financial instruments to a public tender offer (art. 15, para. 2);

b. positions of alienation: 1 rights of alienation (art. 15, para. 1, let. a), 2. rights Exchange and acquisition issued (art. 15, para. 1, let. b), 3. financial instruments, which allow direct or indirect alienation (art. 15, para. 1, let. c).

The thresholds are calculated on the basis of all the voting rights entered in the commercial register.

Art. 13 usufruct (art. 20, para. 1 and 5 SESTA) the constitution or the end of a usufruct is assimilated to the acquisition or alienation of securities for the obligation to report.

Art. 14 loans of securities and similar operations (art. 20, para. 1 and 5 SESTA) lending operations and similar operations, such as the alienation of securities with obligation to repurchase (repurchase) or transfer of property collateral assignments, must be reported.
Reporting only up to the Contracting Party which, in the context of such operations, temporarily holds securities either: a. in the case of securities lending, the borrower; (b) in the case of operation with redemption obligation, the purchaser; (c) in the case of assignment as collateral, the beneficiary of the guarantee.

At the end of the operation, therefore that a threshold is reached or crossed downward, the party required to refund under para. 2 must again declare.
Lending operations and with obligation to repurchase operations are exempted from the obligation to report when they are run way standardized through trading platforms and that they aim liquidity management.

Art. 15 financial instruments (art. 20, para. 2, 2, and 5 SESTA) must be declared: a. the acquisition or alienation of rights of Exchange or acquisition (in particular purchasing options), as well as rights of alienation (particularly put options), which provide for or allow a specific performance; b. the issuance of rights of Exchange or acquisition (in particular purchasing options), as well as rights of alienation (particularly put options) , which provide for or allow a specific performance; c. financial instruments which provide for or allow a delivery in cash, as well as contract futures with cash settlement (such as with "Contracts for difference", "Financial Futures").

Financial instruments other than those mentioned in para. 1 must be reported if, due to their structure, they allow the beneficial owner to acquire equity securities and that they are acquired, insane or issued to a takeover bid. It is presumed that this is the case when these financial instruments, together with the other positions for the acquisition of art. 12, al. 1, let. a, confer rights or expectations for the acquisition of securities representing more than 15% of the voting rights.
The financial instruments reported pursuant to paras. 1 and 2 must be reported again if, because of their exercise or their exercise, participation reached a threshold or crosses, upward or downward.

Art. 16. other obligations to declare (art. 20, para. 1 and 5 SESTA) also, in particular, an obligation to declare is: a. when participation reaches a threshold or crosses, upward or downward: 1. because a company increases, reduces or restructure its capital, 2. because a company acquisition or alienation of its own equity securities 3. because equity securities are purchased or sold for internal collective portfolios of banks within the meaning of art. 4 of the Act of 23 June 2006 on the collective investment schemes (CISA), these titles to be added to the securities held by the Bank or dealer in securities for its own account, 4. by only voting rights relating to shares, the shareholder is entitled to make use or not, regardless of the fact that all of the voting rights related to financial instruments within the meaning of art. 15 reaches, exceeds or descend below a line, 5. as a result of a transfer of securities under the Act or a judicial or administrative decision.

b. in the event of changes in the relationship between direct buyer, indirect purchaser and beneficial owner.

RS 951.31 Erratum Dec 16. 2014 (2014 4563 RO).

Art. 17 collective capital investments (art. 20, para. 1, 3 and 5, SESTA) holders of an authorization (art. 13, para. 2, let. a to d, CISA and article 15 in relation to art. 120,. al 1, CISA) are required to report the holdings of the collective investment schemes authorized under the CISA.
The following rules apply to the obligation to declare: a. when several collective investment depend on the same holder of an authorization, it finds them in a comprehensive manner and finds Furthermore individually each collective investment scheme whose participation a threshold or him crosses, upward or downward, b. a Group fund managers do not have the obligation to consolidate their holdings with those of the Group , (c) management of the Fund says investment with variable capital (SICAV) companies to external management; d. each compartment of a collective investment scheme open divided into compartments is a collective investment scheme within the meaning of para. 1. for collective investments of foreign capital unauthorized distribution, management of the Fund or the company can fulfill its obligation to declare according to the al. 1 and 2 to the extent that she is not dependent on a group. Management of the Fund or company is deemed independent when it can freely exercise the voting rights attached to securities that it administers, which includes: a. personal independence: those of management of the Fund or the company responsible for the exercise of voting rights act independently of the parent company of the Group and other companies that it dominates; b. organizational independence : by its organizational structures, the group guarantees: 1. that the parent company of the Group and other companies controlled by it do not intervene in the form of guidelines or in any other way in the exercise of the voting by the Fund management rights or the company, and2. that no information that could have an impact on the exercise of voting rights is exchanged or doesn't flow between management of the Fund or the company and parent company of the group or other companies controlled by it.

In the cases provided for in para. 3, the Group shall submit the following documents to the proceedings on the competent disclosure of shareholdings: a. a list of names of all directions of funds or companies; any amendments to the list must be reported; (b) a statement that the conditions of independence according to para. 3 are fulfilled and respected.

In the cases provided for in para. 3, the instance for the responsible disclosure of shareholdings can request at any time to other parts stating that the conditions of independence are met and respected.
No details on the identity of investors is required.

RS 951.31 new content according to section I of the FINMA on nov 23 O. 2011, in force since Jan. 1. 2012 (2011 6285 RO).
Introduced by section I of the O of FINMA from 23 nov. 2011, in force since Jan. 1. 2012 (2011 6285 RO).
Introduced by section I of the O of FINMA from 23 nov. 2011, in force since Jan. 1. 2012 (2011 6285 RO).

Art. 18 banks and securities dealers (art. 20, para. 5, SESTA)

Subject to para. 2, banks and traders in securities do not take into account for the calculation of the purchase positions (art. 12, al. 1 let. a) and positions of alienation (art. 12, para. 1, let. b), equity securities and the following financial instruments: a. those held in their position of trading as far as the share of the voting rights reaches not 5%; b. those held under securities lending assignments as security or repo as long as the share of the voting rights reaches not 5%; c. those held for the purposes of the compensation or the settlement of transactions and for a maximum of three trading days.

The calculation within the meaning of para. 1 is allowed if there is no intention to exercise the voting rights for these participations, or otherwise influence the management of the Affairs of the issuer, and that all of the voting rights does not exceed 10%.
The positions referred to in para. 1 must always be included to determine the proportion of the voting rights in the sense of art. 15, al. 2 art. 19 acquisition public offer procedure (art. 20 al. 5, SESTA) duration of acquisition tender procedure (art. 31 SESTA; art. 38 of the O of August 21, 2008 on the OPA (TOO), the offeror and the persons acting in concert with him or in the form of organized group are not subject to the obligations to report within the meaning of Chapter 8 TOO.
At the end of the public tender procedure, individuals required to report under para. 1 must declare their positions to the authorities for the disclosure of competent office in accordance with the provisions of this order again.

SR 954.195.1 art. 20 decision prior art. 20, al. 6, SESTA) as a general rule, relating to the existence or not of an obligation to declare preliminary decision applications must be sent to the instance for the responsible disclosure of shareholdings early enough before the planned operation.
The instance for the responsible disclosure of shareholdings may exceptionally be material about requests for operations already performed.

Section 2 Declaration and publication art. 21 contents of the statement (art. 20 al. 5, SESTA) statement contains the following information: a. the percentage of voting rights, the type and the number of all equity securities or financial instruments within the meaning of art. 15 held by the persons concerned and the voting rights they confer; When participation drops below the threshold of 3%, simply declare that the threshold is reached, without indicating the percentage of the voting rights; b. the facts that trigger an obligation to report, such as acquisition, alienation, the loan of securities and operations similar to the senses of the art. 14, the exercise or non-exercise of financial instruments within the meaning of art. 15, the change in the share capital of the company, the decisions of the courts or the authorities, the establishment of an organized group or the modification of the circle of people within a group; c. the time (date) of the acquisition, alienation or consultation through which participation has reached a threshold or crossed it, in rising or declining; d. the time (date) the transfer of equity securities If it does not coincide with the conclusion of the contract; (e) name, first name and home or business name, seat and address of the purchaser or the vendor or of the persons concerned; f. the contact person.

In the cases listed below, the information provided for in para. 1 must be completed as follows: a. for actions in concert with third parties or groups organized according to art. 10: additional guidance provided for in art. 10, al. 3 and 5; b. for legal action as provided in art. 14: 1. the percentage of voting rights, the type and the amount of equity or of financial instruments within the meaning of art. 15, which have been transferred and the voting rights they confer, 2. the characterization of the legal act, 3. the due date for the return, or, if a right of option was granted to this effect, an indication that this right comes to the Contracting Party, subject to the obligation to report in accordance with art. 14, al. 2, or to the other party;

(c) regarding financial instruments within the meaning of art. 15 admitted to trading in a Swiss Stock Exchange: the international identification code of securities (ISIN); d. values for financial instruments within the meaning of art. 15 who are not admitted to trading in a Swiss stock exchange, information on the essential characteristics, in particular: 1. the identity of the issuer, 2. the underlying, 3. the conditions for exercise, 4. the exercise price, 5. the duration of exercise, 6. the kind of exercise;

e. for financial instruments within the meaning of art. 15, al. 2: a reference to the application of this standard; f. for the collective investment schemes pursuant to art. 17, al. 3: the indication that the conditions of art. 17, al. 3, are met.

For the acquisition or indirect alienation (art. 9), the declaration contains guidance complete regarding both the acquirer or the indirect direct vendor. It should allow to see the relationship between the beneficial owner and the purchaser or the direct vendor.
Any change concerning the reported information must be notified in the four trading days following the birth of the obligation to report to the proceedings on the competent disclosure office and society.

Introduced by section I of the O of FINMA from 23 nov. 2011, in force since Jan. 1. 2012 (2011 6285 RO).
New content according to section I of the FINMA on nov 23 O. 2011, in force since Jan. 1. 2012 (2011 6285 RO).

Art. 22 time art. 20, al. 5, SESTA) the declaration must be written in the four trading days following the birth of the obligation to report to the company and to the proceedings on the competent disclosure of shareholdings.
The company must publish the statement in the two trading days following its reception.
In an operation on its own titles, the company must perform, within a period of four trading days from the birth of the obligation to report, the declaration to the proceedings on the competent disclosure of shareholdings in accordance with para. 1, as well as the publication provided for by para. 2 and art. 23 art. 23 publication (art. 20, para. 5, and. 21 SESTA) society publishes the declaration under art. 21 on a public electronic platform operated by the instance for the responsible disclosure of shareholdings. It must return to the previous publication of the same person required to report.
If the instance for the responsible disclosure of shareholdings operates no public electronic platform, the company publishes this Swiss statement in the Official Gazette of commerce (SOGC) and in at least one important electronic media that broadcast stock information.
If the publication is made in accordance with para. 2, the time of the communication of the statement to the electronic media is crucial to meeting the deadline of the art. 22, al. 2. the publication must be sent simultaneously to the proceedings on the competent disclosure of shareholdings.
As a company omits a publication or proceeds to a wrong or incomplete publication, instances for the disclosure of shareholdings can immediately publish the prescribed information and charge the costs resulting from this proxy to the company. They may make public the reasons for this Supplemental publication. The company must have been informed in advance.

New content according to section I of the FINMA on nov 23 O. 2011, in force since June 1, 2012 (RO 2011 6285).

Art. 24 exemptions and relief (art. 20, para. 5, and. 21 SESTA) exemptions or concessions concerning the obligation to report or publish may be granted for good cause, in particular for the following: a. short-term operations; b. operations that are related to any intention to exercise the right to vote; OUC. operations that come with conditions.

The requests for exemption or relief should be directed to the proceedings on the competent disclosure of shareholdings early enough before the planned operation.
The instance for the responsible disclosure of shareholdings between in material about applications relating to operations already carried out unless in exceptional circumstances.

Section 3 supervision art. 25 instance for the disclosure of shareholdings (art. 20, para. 5 and 6, and 21 SESTA) grants to build a particular instance (instance for the disclosure of shareholdings) responsible for the supervision of the obligation to declare and publish. This Forum also covers applications for preliminary decision (art. 20) and exemption or relief (art. 24).
If the establishment of such a body is disproportionate, this mission may be entrusted to another scholarship; the collaboration agreement must be submitted to the FINMA for approval.

Authorities for the disclosure of shareholdings regularly inform the public of their practice. They can make communications and regulations and publish, by appropriate means, the information necessary for the achievement of the objectives of the SESTA. Recommendations must, as a general rule, be published in anonymous form.
Instances for the publication of entries can claim fair compensation for execution of the tasks entrusted to them by the FINMA and the processing of applications. Rates are subject to the FINMA for approval.

Art. 26 proceedings (art. 20, para. 5 and 6, and 21 SESTA) preliminary decision (art. 20) requests, and requests for exemption or relief (art. 24) must contain a statement of the facts and conclusions and must be reasoned. The statement of facts must be based on relevant documents and contain all the information required under art. 21. the forum for the disclosure of shareholdings will issue a recommendation to the address of the applicant; It must be reasoned and communicated also to the FINMA.
The instance to the disclosure office may send its recommendations to the company. Reserved the essential interests of the applicant, including secrecy.
FINMA decision if: a. it intends to decide itself on the case; b. the applicant rejects or does not observe the recommendation. OUC. the instance to the disclosure office asked him to make a decision.

If FINMA wants to rule herself, she States within a period of five trading days.
If it rejects a recommendation, the applicant must motivate him in writing within a period of five days for a grant to the FINMA. On request, it can extend that period.
In the case, according to para. 4, FINMA immediately opens a procedure and informs the instance for the disclosure of shareholdings as well as stakeholders. At the same time, she asked this instance to give him his records.

New content according to section I of the FINMA on nov 23 O. 2011, in force since Jan. 1. 2012 (2011 6285 RO).
Introduced by section I of the O of FINMA from 23 nov. 2011, in force since Jan. 1. 2012 (2011 6285 RO).

Art. 27 investigations (art. 4, 20, paras. 4 and 5, and. 21 SESTA) FINMA may order instances for the disclosure of shareholdings or firms to conduct investigations.

Chapter 4 Obligation to offer a Section 1 offers compulsory art. 28 provisions (art. 32, para. 6, SESTA) in addition to the art. 32 SESTA and provisions hereinafter, the mandatory offer is subject to the art. 22 to 31, 33 to 33d and 52 to 54 SESTA as well as to the enforcement provisions of the federal Council and the Commission of the public tender.

Art. 29 principle (art. 32, para. 1 and 6, SESTA) anyone who acquires, directly or indirectly, equity securities and thus exceeds the legal or statutory threshold within the meaning of art. 32, al. 1, SESTA (threshold) is required to submit an offer.

Art. 30 indirect acquisition (art. 32, para. 1 and 6, SESTA) art. 9, al. 3, shall apply by analogy to the indirect acquisition of shareholdings of the target company, subject to a mandatory offer.

Art. 31 acting in concert with third parties or organized group (art. 32, para. 1, 3 and 6, SESTA) art. 10, al. 1 and 2, shall apply by analogy to buyers of shares of the target company subject to a mandatory offer, which act in concert or in organized group to control the target company.

Art. 32 calculation of the threshold (art. 32, para. 1 and 6, SESTA) threshold is calculated on the basis of all voting rights entered in the commercial register.
The decisive participation of the purchaser for exceeding the threshold includes all securities it owns or who, in another way, give him a right to vote, it is entitled to make use or not.
Powers of attorney conferred exclusively for purposes of representation at a general meeting are excluded from the calculation.

Art. 33 subject to the mandatory offer (art. 32, para. 1 and 6, SESTA) mandatory offer must focus on all categories of equity securities traded of the target company.
It must also focus on equity securities that are newly created through financial instruments, when the voting rights y related are exercised before the expiration of the additional period within the meaning of art. 27, al. 2, SESTA.

Art. 34 pass to the purchaser from the obligation to make an offer (art. 32, para. 3 and 6, SESTA) when having previous economic law of equity securities was required under the transitional provision of art. 52 SESTA, to make an offer for all equity securities in excess of the threshold of 50% of the voting rights, this obligation passes to the purchaser of a participation between 33⅓et 50% of the voting rights provided to bid under art. 32, al. 3, SESTA.

Art. 35 restoration of the obligation to make an offer (art. 32, para. 6, SESTA) anyone who holds, at the entry into force of the SESTA, 50% or more of rights of a society and reduced voting subsequently its participation less than 50% of the voting rights, is required to submit an offer under art. 32 SESTA, if it exceeds this threshold again.

Art. 36 mandatory offer and conditions (art. 32, para. 1, 3 and 6, SESTA) the mandatory offer must be unconditional except for good cause.
There are particularly important reasons in the following cases: a. the authorization of an authority is required for the acquisition; (b) equity securities to acquire confer no right of vote; OUC. the offeror requires that the economic substance of the target company, designated in practice, should not be changed.

Art. 37 delay (art. 32, para. 1 and 6, SESTA) the mandatory offer must be presented within two months following the overrun of the threshold.
The public tender Commission may grant an extension of this deadline for good cause.

Section 2 exceptions to the obligation to offer art. 38 General derogations (art. 32, para. 2, 3 and 6, SESTA) there is no obligation to make an offer in the following cases: a. during a cleanup operation, exceeding of the threshold results directly from the capital reduction followed by its immediate reaugmentation to absorb a loss; b. banks or dealers, only or in the form of Union are closed from equity securities during a broadcast and agree to sell the number of equity securities exceeding the threshold within three months after its passing, if such resale actually takes place within the time limit; on request, the Commission of the public tender may extend the time if circumstances warrant.

Anyone who submits a derogation within the meaning of para. 1 must announce it to the Commission of the public tender. This one opens an administrative procedure in the five trading days when it has reason to believe that the conditions of the al. 1 are not met.
It is not necessary to announce the derogations referred to in art. 32, al. 3, SESTA.

Art. 39 specific derogations (art. 32, para. 2 and 6, SESTA) in the cases provided for in art. 32, al. 2, SESTA and in other cases justified, a buyer with a bid may be released from this obligation for good cause.
The following cases are especially other cases justified within the meaning of art. 32, al. 2, SESTA: a. the purchaser cannot control the target, particularly because another person or a group has a higher voting percentage; b. a group organized in the sense of art. 32, al. 2, let. a, SESTA also exceeds the threshold individually; c. the prior acquisition took place indirectly (art. 30), provided that this acquisition is not part of the main purposes of the transaction and that the interests of the shareholders of the target company are not harmed.

The granting of a derogation can be matched conditions; in particular, the purchaser may have imposed certain obligations.
The conditions referred to in para. 3 go to the successor in title who acquires a participation of more than 33⅓et that is provided to make an offer under art. 32, al. 3, SESTA.

Section 3 calculation of the price of supply art. 40 stock price (art. 32, para. 4 to 6, SESTA) of the offer price shall be at least the purse for each category of equity securities.
The course of exchange within the meaning of art. 32, al. 4, SESTA corresponds to the average price of transactions on the stock exchange of the 60 trading days prior to the publication of the offer or prior announcement, calculated on the basis of the weighting of the volumes.
Special events during this period, which influence substantially the course, as dividend payments or capital transactions, are not taken into account in the calculation. In its report, the supervisory body (art. 25 SESTA) certifies the validity of corrections and exposes the calculation bases.
If participation securities are not liquid prior to publication of the offer or prior announcement, the supervisory body (art. 25 SESTA) is assessed. It indicates the method and basis of calculation in its report.

Art. 41 (art. 32 para. 4 to 6, SESTA) prior purchase price

The preliminary purchase price is the highest price paid by the purchaser for equity securities of the target company during the twelve months preceding the publication of the offer or prior announcement.
It is calculated separately for each category of equity securities. The reasonable ratio between the price of several categories of securities within the meaning of art. 32, al. 5, SESTA is determined by the highest price paid for an ownership interest compared to its face value.
The price of the securities of the target company acquired in Exchange for securities during the prior acquisition is calculated based on their value at the time of the Exchange.
When prior, in addition to the main services, the purchaser or the vendor provides other significant benefits, such granting guarantees or benefits in kind, the price of the prior acquisition is corrected with the amount corresponding to the value of these benefits as part of an acquisition.
In its report, the supervisory body (art. 25 SESTA) checks the value attributed to the equity securities in accordance with para. 3, certifies that the correction referred to in para. 4 is fair and exposes the calculations.

Art. 42 indirect prior acquisition (art. 32, para. 4 to 6, SESTA) when the prior acquisition was indirect, in the sense of art. 30 in connection with art. 9, al. 3, let. c, the Offeror must indicate in the prospectus for the offer the part of the price paid, which corresponds to the equity securities of the offeree company; the calculation of this share must be verified by a supervisory body.

Art. 43 regulation of the offer price (art. 32, para. 4 to 6, SESTA) the offer price may be paid in cash or by Exchange of securities.
The offeror may offer payment by Exchange of securities only in parallel with a proposal for a cash payment.

Art. 44 assessment of securities (art. 32, para. 4 to 6, SESTA) art. 40, al. 2 to 4, shall apply by analogy to determine the price of the securities offered in Exchange.

Art. 45 derogations (art. 32, para. 4 to 6, SESTA) in special cases, the Commission of the public tender may, for good cause, grant to the offeror of the derogations from the provisions of this section (arts. 40 to 44).

Chapter 5 Collaboration between FINMA, the Commission of the takeover bids and awards art. 46 (art. 20, paras. 4 and 5, 34 and 35 SESTA) the FINMA, the Commission public tender and instances of admission, for advertising participation and supervision in grants engage spontaneously or on request all information and documents necessary for the accomplishment of their tasks. In particular, they learn when they have reason to suspect an offence whose education rests with the authority or the instance concerned.
The authorities and bodies concerned shall preserve secrecy, professional secrecy and business secrecy; they use the information and documents received as part of the duties which they are responsible under the SESTA.

Chapter 6 provisions final art. 47 repeal of the law in force the order of the SFBC of 25 June 1997 on scholarships (SESTO-SFBC) is repealed.

[RO 1997 2045, 2005 5671, 2007 2953 5759]

Art. 48 transitional provision the declarations made under the previous law remain valid.
The events that occurred after the entry into force of this order can be declared according to the old law (art. 9 and 23 SESTO-SFBC) through June 30, 2009, provided it contains a corresponding reference.

[RO 1997 2045, 2007 2953 5759]

Art. Transitional 48aDisposition of the change of November 23, 2011 to implement art. 23, al. 1, the company reports the most recent statements that are published on the public electronic platform of individuals required to report no later than October 1, 2012.

Introduced by section I of the O of FINMA from 23 nov. 2011, in force since Jan. 1. 2012 (2011 6285 RO).

Art. 49 entry into force this order comes into force on January 1, 2009.

RO 2008 6521 RS 954.1 State on May 1, 2013

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