CapLaw is the first electronic newsletter providing up-to-date information on legal and regulatory developments, concise articles and reports on deals and events with particular focus on Swiss capital markets. CapLaw is addressed to all Swiss and international lawyers, in-house counsels financial institutions and corporates as well as those who are interested in the Swiss capital markets.
René Bösch, Homburger AG
Thomas Reutter, Bär & Karrer AG
Patrick Schleiffer, Lenz & Staehelin
Peter Sester, University of St. Gallen
Philippe A. Weber, Niederer Kraft & Frey AG
Thomas Werlen, Quinn Emanuel Urquhart & Sullivan, LLP
Many listed companies are seeking “on-demand” capital solutions that are tailor made to their specific needs. These companies often enter into arrangements with an institutional investor, whereby the company has the right to call specified amounts of cash from the investor against issuance or delivery of a certain amount of shares in return. Such arrangements are often referred to as “equity lines”, “equity distribution agreements” or “share subscription facilities”. This article explores how such agreements are best structured for Swiss listed and incorporated issuers from both a corporate and a capital markets perspective.
By Thomas Reutter / Annette Weber (Reference: CapLaw-2016-18)
Amended Swiss Rules regarding Disclosure of Significant Shareholdings in Listed Companies in Switzerland
On 1 January 2016, revised regulations regarding the disclosure of significant shareholdings in listed Swiss companies or non-Swiss companies with their primary listing in Switzerland entered into effect. In most respects, the new law restated the former regulations. However, the legislation also introduced some significant changes and imposes important new disclosure obligations, in particular upon asset managers who discretionarily exercise the voting rights of the shares held or managed on behalf of their clients.
By Hans-Jakob Diem (Reference: CapLaw-2016-19)
This article summarises two decisions of the Swiss Takeover Board regarding the recently announced takeover offer for Kuoni by EQT, which, inter alia, contain relevant guidance in relation to the so-called “Minimum and Best Price Rules” and “irrevocables”. In addition, during the first quarter of 2016 the Swiss Takeover Board has passed a noteworthy decision in relation to EFG International concerning the non-existence of a tender offer duty in connection with the entry into a shareholders agreement.
By Philippe Weber / Thomas Brönnimann (Reference: CapLaw-2016-20)
FINMA Introduces Technology-Neutral Regulation to Facilitate Client Onboarding Through Digital Channels
With effect from 18 March 2016, FINMA introduced a new circular on video and online identification and amended the circular regarding guidelines on asset management. These changes are a first step to develop technology-neutral regulation and to reduce potential hurdles to technological innovation in the Swiss financial sector.
By Katrin Ivell / Benjamin Leisinger (Reference: CapLaw-2016-21)
On March 31, 2016, VAT Group, the leading global manufacturer of high-end vacuum valves and related products and services headquartered in Haag (Switzerland), announced the launch of its initial public offering (IPO) on SIX Swiss Exchange with the publication of the Offering Memorandum and the start of the book-building process. The IPO aims at broadening the shareholder base of VAT through the sale of 12,000,000 existing shares plus an over-allotment option of up to 1,800,000 existing shares. The price range for the offered shares was set at CHF 39 to CHF 46 per share. On 13 April 2016, the final offer price was fixed at CHF 45 per share, resulting in an offer size of CHF 540 million (respectively CHF 621 million assuming full exercise of the over-allotment option) and an implied market capitalization of CHF 1,350 million, which makes this the largest IPO in Europe of the year to date. The shares of VAT started trading on SIX Swiss Exchange on April 14, 2016 with an opening price of CHF 52.
On 11 April 2016, Chinese HNA Group Co., Ltd. (“HNA”) announced an all cash public tender offer for all publicly held registered shares of gategroup Holding AG (“gategroup”) at a price of CHF53 per share. Including the dividend, the offer price represents a 37.8% premium to the volume weighted average price during the last 60 trading days prior to the pre-announcement of the offer and a 20.9% premium to the closing share price as of 8 April 2016. According to the media release, gategroup’s Board of Directors unanimously supports the public tender offer and recommends that shareholders accept the offer.
On 4 November 2015, the Swiss Federal Council adopted the draft Financial Services Act and submitted it to the Swiss Parliament. If enacted as proposed, it will impose new requirements on financial services providers and will introduce a new Swiss prospectus regime. Modeled largely after the EU prospectus framework, the new prospectus regime will be a veritable paradigm change to Swiss capital market regulation, introducing a number of novelties for issuers of securities in the Swiss market, such as the requirement for an ex ante approval for most financial instruments, coupled with some important long-awaited explicit exemptions from such requirement and the requirement for a prospectus for secondary public offerings.
By Christian Rehm / René Bösch (Reference: CapLaw-2016-1)
The Reviewing Body – a New Element in the Prospectus Law according to the Federal Financial Services Act (FinSA)
The Draft Federal Financial Services Act (FinSA) provides for uniform rules for the requirement to publish a prospectus for all public securities offerings and for the admission of securities to trading on a trading venue. A central element of the new regulations is the requirement for a mandatory check of the prospectus by a reviewing body (Prüfstelle), prior to the publication of the prospectus.
This article discusses the new prospectus requirements according to the FinSA and introduces the reviewing body as a new element of the listing procedure. Further, the possible impact of these new regulations on the listing process will be illustrated and some initial conclusions drawn.
By Rodolfo Straub / Therese Grunder / Regina Tschopp (Reference: CapLaw-2016-2)
Regulation of the Point of Sale – An Update on the Rules of Conduct of Financial Services Providers under the proposed FIDLEG
On 4 November 2015 the Swiss Federal Council has published the Message (Botschaft) on the Financial Services Act (Finanzdienstleistungsgesetz, FIDLEG). In the industry, it has been expected with great excitement and interest, as it will have a major impact, inter alia, on how financial services and products may be offered and sold to clients. Also, the FIDLEG, together with the new Financial Institutions Act (Finanzinstitutsgesetz, FINIG), will define how equivalent the relevant Swiss regulation will be when compared with, in particular, EU regulation. This article aims to provide a short overview on the core content of the FIDLEG, namely, the conduct duties to be complied with at the point of sale.
By Sandro Abegglen / Luca Bianchi (Reference: CapLaw-2016-3)
Draft Financial Services Act to Expand Clients’ Enforcement Rights vis-à-vis Financial Services Providers, Leaves Key Questions Unaddressed
While the draft Financial Services Act (FinSA) primarily has a regulatory purpose, it also contains provisions set to effect the private law relationship between providers of financial services and clients. The proposed measures include a claimant-friendly rule regarding the allocation of costs in litigation proceedings, stricter requirements for financial services providers regarding documentation, information and disclosure of documents for the purpose of enforcement of clients’ rights, and a quasi-mandatory ombuds system for all disputes arising out of financial services contracts, including loan contracts, insurance contracts and all normal retail client bank relationships.
By Thomas Werlen / Jonas Hertner (Reference: CapLaw-2016-4)