Formalities

Date of reorganisation

Can a corporate reorganisation be backdated or deemed to have already taken place, for example from the start of the financial year?

With regard to the civil law effects of a transaction (eg, the transfer of ownership according to Swiss law, the increase of share capital, the merger of two entities or the dissolution of a company), a transaction cannot be backdated. However, with regard to the economic effects (which have a direct impact on accounting and tax qualifications), a transaction may be backdated, for example to the beginning of the financial year.

Documentation

What documentation is required in a corporate reorganisation?

The documentation depends on the contemplated corporate reorganisation. The Merger Act and the Ordinance on the Commercial Register explicitly list the minimal documentation required for a merger, a demerger, a conversion or an asset transfer according to the Merger Act. A simplified subsidiary in a parent-merger, for example, requires at least a merger agreement, a merger balance sheet and the approval of the board of directors, which have to be submitted together with an application to the competent cantonal commercial register. Group internal sales, and transfers of shares and assets governed under the Code of Obligation, are most commonly implemented under a share purchase or asset purchase agreement in written form, although the written form is, in general, not required by law. The transfer of the shares or assets must comply with the relevant underlying statutory provisions (eg, handing over of the endorsed share certificates or issuing a written declaration of assignment in case of a transfer of shares in a corporation).

Representations, warranties and indemnities

Should representations, warranties or indemnities be given by the parties in a corporate reorganisation?

Whether representations, warranties or indemnities will have to be given has to be decided case by case and depends on the contemplated transaction. However, in internal group corporate reorganisation transactions, it is often the case that only a representation of the unencumbered title of the assets or shares is granted by the selling or transferring party. These transactions will generally not pass the arm’s-length test.

Assets versus going concern

Does it make any difference whether assets or a business as a going concern are transferred?

Yes. If a transfer of assets is considered a transfer of a (going concern) business or business unit, the employment relationships of such business’s employees will be permanently transferred to the transferee by law, unless the employees (but not the employer) object to such transfer (see question 8).

Types of entity

Explain any differences between public, private, government or non-profit entities to consider when undertaking a corporate reorganisation.

In general, in the case of a corporate reorganisation, the same civil and tax law principles apply for listed or non-profit entities (as far as they are not exempted from taxes) as for private entities. Moreover, the special statutory law that governs public or governmental entities in the legal form of a corporation (eg, in sectors such as public transport, nuclear power or the military) usually refers to the general principles of corporate law that are applicable for private corporations in the case of a corporate reorganisation.

Post-reorganisation steps

Do any filings or other post-reorganisation steps need to be taken after the corporate reorganisation takes place?

Corporate

In intra-group transactions, acquirers or subscribers of shares are obliged to report and disclose the beneficial owner or owners (ie, the natural person or persons) of the shares to the board of the legal entity of which shares have been acquired or subscribed to, if they reach or exceed a qualified holding of 25 per cent of the share capital or the voting rights in the legal entity by acquiring or subscribing to the shares. In addition, acquirers or subscribers of bearer shares have to report and disclose, irrespective of their holding, their names and addresses to the board of the legal entity.

Tax

Depending on the type of corporate reorganisation, certain tax filings need to be made with the competent tax authorities (eg, withholding tax declarations or value added tax declarations).