M & A – Mergers & Acquisitions

The following essential elements must be complied with, irrespective of whether the transaction is a share deal or an asset deal:

Overview of deal variants

Deal variant
Legal status	Form of deal	Universal succession		Particular succession
		Registration in commercial register	Commercial register used as a form of publicity	Binding transaction (signing)	Execution (closing)
Partnership
	Asset deal
	Purchase of assets + liabilities			x	x
not registered in Commercial register	Transfer of assets pursuant to Article 181 of the Swiss Code of Obligations			x	x
	Transfer of assets pursuant to Article 69 ff. of the Swiss Law on Mergers	x	x
	Change of partner			x	x
Capital company
	Share deal
	Purchase of shares			x	x
	Merger	x	x
	Demerger	x	x
	Asset deal
	Purchase of assets + liabilities			x	x
	Transfer of assets pursuant to Article 69 ff. of the Swiss Law on Mergers	x	x
	Share deal + Asset deal
	Purchase of part of the assets			x	x
	Purchase of part of the assets + liabilities			x	x
	Transfer of assets pursuant to Article 69 ff. of the Swiss Law on Mergers	x	x
	Merger, as appropriate (partial)	x	x
	Demerger, as appropriate (partial)	x	x

Limited universal succession following the transfer of assets pursuant to Article 69 ff. of the Swiss Law on Mergers:

• Registration in commercial register
• Commercial register used as a form of publicity.

In accordance with the system, rights are acquired upon registration in the commercial register. Entries may be made in other registers, such as the land register or the patent and trade mark register, at a later date. These will thus be declaratory registrations.

Individual registrations owing to particular succession following purchases (share deals or asset deals) and asset transfers pursuant to Article 181 of the Swiss Code of Obligations (asset deals):

• binding transaction
• execution (transfer of possession, registration with land register etc.)

Rights are transferred upon transfer of possession or registration (in the land register or patent and trade mark register). These forms of delivery have constitutive effect.