Facts
The SIG Holding AG (SIG) is a stock corporation with its seat in Neuhausen. On 24 September 2006, the Board of Directors of SIG AG announced to the public that Romanshorn SA (the bidder) had expressed its interest in acquiring the shares of SIG. The Board of Directors rejected this offer as too low and decided to give both the bidder and third parties the opportunity to carefully examine the acquisition of SIG.
The Takeover Board issued a recommendation that SIG AG should grant the Romanshorn SA the opportunity to conduct a due diligence as soon as the latter had signed the usual contracts for admission. SIG AG rejected items 1, 2, and 6 of the recommendation, which were then confirmed by the Takeover Committee of the Swiss Federal Banking Commission (SFBC).
The Federal Court dismissed the administrative appeal filed by SIG Holding AG.
Considerations
The Federal Court stated that the target company, which grants due diligence to potential bidders, must also enable an initial bidder it does not favor to conduct due diligence to the same extent and in the same framework, regardless of whether a competing offer is made or not.
The target company must provide the Takeover Board and the Banking Commission with all the information and documents necessary for them to perform their supervisory duties in individual cases. It is up to them, not the target company, to determine whether an inadmissible defense measure exists and whether the principle of equal treatment is violated in this context.
The Takeover Board has the authority to request from the target company all the information and documents it needs to monitor the takeover law auction process in a market-neutral manner. The target company is required to provide the Takeover Board with the…