Welcome to CapLaw

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.

The Editors
René Bösch, Homburger AG
Franca Contratto, University of Lucerne
Thomas Reutter, Bär & Karrer AG
Patrick Schleiffer, Lenz & Staehelin
Philippe A. Weber, Niederer Kraft & Frey AG
Thomas Werlen, Quinn Emanuel Urquhart & Sullivan, LLP

Licensing of the Reviewing Bodies pursuant to the Financial Services Act – An Initial View

The Swiss financial market regulatory framework has undergone fundamental and comprehensive reforms over the past few years. The main purpose of these reforms is to harmonize Swiss regulations with existing and new EU regulations and to ensure access of Swiss financial institutions to the European market by fulfilling equivalence requirements. The most important parts of the reform package in terms of Swiss capital markets are set out in the new Financial Services Act (FinSA) and its implementing ordinance, the Financial Services Ordinance (FinSO), both of which entered into force on 1 January 2020 (subject to the phase-in of certain provisions as well as transition periods). 

By Philippe Weber / Christina Del Vecchio (Reference: CapLaw-2020-21)

Structured products under FinSA

The entry in force of FinSA and the FinSO has introduced several changes to the regulation of structured products in Switzerland. Some changes appear directly in the specific rules on structured products, but most of them derive from their inclusion in the FinSA’s general framework. This article presents the new regulation of structured products as of 2020 and discusses a select handful of specific issues. 

By Jeremy Bacharach1 (Reference: CapLaw-2020-22)

Duty to Report under Article 74 FinIA – Planning Tool for FINMA or (Maybe) More?

FinIA has consolidated the authorisation regime for all financial institutions (except for banks which remain to be regulated under the Banking Act) and has extended this regime to independent asset managers and trustees. Even though the new law provides for a smooth transitional period enabling financial institutions to cope with the new regulation, asset managers and trustees now falling under the new regime are or have been required to file a report with the Swiss regulator FINMA. This article outlines the duty to report and its consequences.

By Matthias Lötscher / Pascal Zysset (Reference: CapLaw-2020-23)

A new proxy adviser regulation in Switzerland?

The Swiss Parliament has adopted a motion requiring the Swiss government to propose a new regulation addressing the conflicts of proxy advisers. The primary focus seems to be on ISS and to a lesser extent on Glass Lewis for their potential dual role in advising institutional investors on voting recommendations and listed companies on corporate governance and compensation. In the absence of a physical presence of these proxy advisers in Switzerland, it remains unclear how the required legislation could be effectively enacted. 

By Thomas U. Reutter / Annette Weber (Reference: CapLaw-2020-24)

LIBOR Transition for Derivatives – State of Play

On the basis of statements made by regulators so far, the market expects that panel banks will no longer be compelled to make submissions for the determination of the London Interbank Offered Rates (LIBOR) as of the end of 2021 and that LIBOR will cease to be published in its current form as a result. This gives rise to the questions what alternative interest rate benchmarks may be used instead of LIBOR rates in the derivatives market and how to proceed with regard to transactions referencing LIBOR rates that have a maturity beyond the end of LIBOR.

By Olivier Favre (Reference: CapLaw-2020-25)

ADC Therapeutics SA’s Successful IPO

On 15 May 2020, ADC Therapeutics SA listed its shares on the New York Stock Exchange (ticker symbol ADCT). ADCT is a late clinical-stage oncology-focused biotechnology company pioneering the development and commercialization of antibody drug conjugates. Through its IPO, at USD 19 per share, ADCT raises gross proceeds of USD 267 million including greenshoe. At market close on the first day of trading, ADCT had a market capitalization of USD 2.1 bn. ADCT is the first Swiss company to go public in 2020.

Rights Offering of Cassiopea SpA

On June 3, 2020, SIX Swiss Exchange listed Cassiopea S.p.A. launched a right offering of 750,000 registered shares. Cassiopea expects to receive net proceeds from the offering of approximately EUR 22.3 million, which will be used to finance the Company’s operations up to the planned approval of Clascoterone cream 1% in H2 2020 and the preparation of Clascoterone cream 1%’s subsequent launch in the U.S. and for general corporate purposes. The newly issued shares started trading on the SIX Swiss Exchange for the first time on June 18, 2020. Italian-based Cassiopea is a specialty pharmaceutical company developing and preparing to commercialize prescription drugs with novel mechanisms of action (MOA) to address long-standing and essential dermatological conditions.

Placements of SoftwareONE shares

On 15 May 2020, the selling shareholders KKR, Raiffeisen Informatik, the heirs of Patrick Winter and B. Curti Holding AG conducted a sale of 17.5 million shares in SoftwareONE Holding AG, a leading provider of end-to-end software and cloud technology solutions headquartered in Switzerland and listed on the SIX Swiss Exchange. The sale was effected pursuant to a block trade by way of an accelerated book build and raised gross proceeds of CHF 350 million.

On 18 June 2020, the selling shareholders KKR, Raiffeisen Informatik and the heirs of Patrick Winter conducted a further sale of 17 million shares in SoftwareONE Holding AG, a leading provider of end-to-end software and cloud technology solutions headquartered in Switzerland and listed on the SIX Swiss Exchange. The sale was effected pursuant to a block trade by way of an accelerated book build and raised gross proceeds of CHF 382.5 million.

Implenia AG Completes the Spin-off of Ina Invest Holding AG

On 12 June 2020, Implenia AG completed the spin-off of Ina Invest Holding AG and the shares of Ina Invest Holding were, after a concurrent capital increase, listed on the SIX Swiss Exchange. Ina Invest AG is a Swiss real estate company whose entire portfolio shall be developed and realized according to the highest sustainability criteria.

The spin-off has been effected through a tax-neutral dividend in kind distribution of the Ina Invest Holding shares to Implenia’s shareholders that was previously approved by Implenia’s shareholders. It was preceded by the separation of a part of Implenia’s development portfolio to Ina Invest (a subsidiary held in part by Ina Invest Holding and Implenia) through a series of transactions, including a tax neutral spin-off of real estate in various cantons. Ina Invest Holding will hold approximately 57% of Ina Invest, with Implenia the rest. In parallel, Ina Invest Holding has completed a rights offering. It raised gross proceeds of approximately CHF 116 million. 

Credit Suisse (Schweiz) AG Receives Approval for the First-Ever Prospectus Complying with the New Swiss Prospectus Regime

On 18 June 2020, SIX Exchange Regulation, in its capacity as a new review body under the Financial Services Act (FinSA), licensed since 1 June 2020 (as is the second Swiss review body, RegServices of BX Swiss), approved the first fully FinSA-compliant base prospectus of Credit Suisse (Schweiz) AG. Credit Suisse’s Swiss Covered Bond issuance programme provides for the issuance of Swiss-law governed covered bonds with public offerings and admissions to trading on a trading venue in Switzerland in compliance with the new Swiss prospectus regime.