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
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

Rights Offering of ARYZTA

On 19 November 2018, ARYZTA, a global food business with a leadership position in speciality bakery, completed a capital increase by way of a rights offering structured as a volume underwriting in the amount of approximately CHF 900 million. 97.4% of the shareholders of ARYZTA exercised their subscription rights in the rights offering. The new shares not subscribed were placed in the market.

SIX Published Criteria for Crypto Assets as Eligible Underlyings

On 10 September 2018, the SIX Exchange Regulation Ltd. published its revised Circular No. 3 that includes rules on the eligibility of certain crypto assets (crypto currencies) as underlyings of derivatives listed at SIX.

By Benjamin Leisinger (Reference: CapLaw-2018-42)

Insider Trading and Market Manipulation in Tokens

Trading in tokens is currently in the spotlight of the public’s and the regulator’s attention. Based on distributed ledgers-technology, blockchain technology is used to issue tokens as tradable digital units and to record ownership and transactions of the issued tokens. At present, there are no specific laws and little regulation applying to trading in tokens in Switzerland. With a view to improve market confidence as well as to ensure proper functioning and transparency of token trading, a variety of legal issues have yet to be resolved. In particular, the question of insider trading and market manipulation needs to be clarified.

By Thomas U. Reutter / Daniel Raun (Reference: CapLaw-2018-43)

The Proposed Strengthening of Group Action in Swiss Civil Procedure

In Switzerland, plaintiffs are forced to litigate their claims in court individually, even if they are part of a group that is affected by the same underlying damaging event. In the context of the ongoing partial revision of the Civil Procedure Code the Swiss Federal Council is seeking to facilitate actions for damages for large groups. To this end it is proposing amendments to the existing mechanism of a group action through an organization and the introduction of a novel group settlement method.

By Thomas Werlen / Remo Decurtins (Reference: CapLaw-2018-44)

Revised FINMA Anti-Money Laundering Ordinance

On 18 July 2018, FINMA published its revised Anti-Money Laundering Ordinance (the AMLO-FINMA). The revised AMLO-FINMA is noteworthy not so much for what it contains, but rather for what it does not contain.

By Katrin Ivell (Reference: CapLaw-2018-45)

EU PRIIPs Regulation and MiFID II – Impact on Debt Capital Markets Offerings

In January 2018, two next sets of European rules affecting debt capital markets offerings into the European Economic Area (EEA) have come into effect: the PRIIPs Regulation (EU 1286/2014) on key information documents for packaged retail and insurance-based investment products (PRIIPs) and MiFID II (Directive 2014/65/EU on markets in financial instruments). The PRIIPs Regulation requires that a key information document be prepared and published for all offerings to retail investors that are in scope of the regulation. Its applicability to different types of bonds has been subject to much debate. This article presents an overview of the new regulation and consequences for debt capital markets transactions that include offers to European retail investors. In addition, the article discusses the implications of the new MiFID II rules, which have imposed new product governance obligations on MiFID firms when they manufacture and/or distribute financial instruments. Both sets of rules have resulted in new selling restrictions and contractual provisions being introduced in bond documentation.

By Dorothee Fischer-Appelt (Reference: CapLaw-2018-46)

Overview of SIX’s Directive on the Use of Alternative Performance Measures

For many companies listed on the SIX Swiss Exchange Ltd (SIX), the use of alternative performance measures (APMs) has become a regular tool for communicating the business and financial performance of a company to investors. In light of the widespread use of APMs, their diverse application and the increasing risk of investors being misled, SIX Swiss Exchange Regulation Ltd has issued a new Directive on the Use of Alternative Performance Measures (the Directive). This article provides a brief introduction to the Directive and its application to issuers listed on SIX.

By Deirdre Ní Annracháin (Reference: CapLaw-2018-47)

SIG Combibloc Group IPO on SIX Swiss Exchange

SIG Combibloc Group, a leading provider of aseptic carton packaging solutions for the food and beverage industry, sucessfully priced its IPO and listed its shares on the SIX Swiss Exchange, where trading commenced on 28 September 2018. The offering consisted of a base offering of both new and existing shares and a fully exercised over-allotment option of additional existing shares. The shares priced at CHF 11.25 per share, implying a total market capitalization of approximately CHF 3.6 billion.

Credit Suisse Group AG Issuances of Tier 1 Contingent Write-down Capital Notes

Credit Suisse Group AG (CSG) completed the issuances of CHF 300 million 3.5 per cent. Perpetual Tier 1 Contingent Write-down Capital Notes and USD 1.5 billion 7.250 per cent. Perpetual Tier 1 Contingent Write-down Capital Notes on 4 September and 12 September 2018, respectively. The Notes are “high trigger” regulatory capital instruments that are eligible to fulfill CSG’s Swiss going concern requirements, featuring a full contractual write-down if (among other events) CSG’s consolidated common equity tier 1 capital falls below 7 per cent. of its consolidated risk weighted assets. The Notes are traded on the SIX Swiss Exchange. Since the Notes are eligible to fulfill Swiss going concern requirements, they also qualify for an exemption from the Swiss withholding tax that would normally be applicable to bonds directly issued by the Swiss-domiciled CSG.

Leonteq AG Completes Rights Offering

On 3 August 2018, Leonteq AG, a SIX Swiss Exchange listed independent expert for structured investment products and long-term savings and retirement solutions, completed the issuance of 2,989,593 new shares from existing authorized capital in a fully underwritten rights offering. The offering generated net proceeds of approx. CHF 118 million which Leonteq intends to use to further strengthen its capital base in order to facilitate and support the continued growth of its business. The new shares were listed and first traded as of 3 August 2018.