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
Philippe A. Weber, Niederer Kraft & Frey AG
Thomas Werlen, Quinn Emanuel Urquhart & Sullivan, LLP

Acquisition of cashgate by Cembra Money Bank

Cembra Money Bank has agreed to acquire cashgate. The purchase price for the acquisition of cashgate and the refinancing of cashgate’s loan portfolio is partly backed by a bridge facility and is financed and refinanced by the sale of treasury shares (gross proceeds of CHF 112.8 million) in an accelerated bookbuilding, the placement of CHF 150 million perpetual additional Tier 1 bonds and CHF 250 million net share settled convertible bonds.

Insurance Supervision Act – Key Aspects of the Ongoing Revision

From mid November 2018 until 28 February 2019, the Swiss Federal Council held consultations on a partial revision of the Insurance Supervision Act (ISA). Subject to completion of the legislative process and the referendum period, the revisions will likely enter into force around 2022.

The proposed bill will update existing provisions in the ISA to bring them in line with international standards and rectify perceived inadequacies in the current regulations. It will also introduce completely new provisions to regulate the restructuring of (re)insurance companies, an explicit statutory basis for the Swiss Solvency Test (SST), product governance and conduct-of-business regulations for specific investment products and, last but not least, a system of differentiated supervisory intensity to better reflect the specificities of the retail/wholesale and professional insurance markets.

By Petra Ginter1 (Reference: CapLaw-2019-12)

Can publicly available data become insider information?

Investors of the twenty-first century can harness the power of publicly available data to form a view on a specific company or – more generally – on a particular investment topic. Satellite imagery, marine and air traffic trackers, keyword or search engine trends can provide critical insights on how a company is performing, sometimes unbeknownst to the company itself and most other interested investors. This contribution explores whether there are circumstances in which data extracted from public sources is or can become insider information under Swiss law.

By Ariel Ben Hattar (Reference: CapLaw-2019-13)

Popular Initiative on Responsible Enterprises: Switzerland’s Long Arm on Subject Enterprises

Although its fate and timing are very unclear, the popular initiative “for responsible enterprises – for the protection of human rights and environment” (initiative on responsible enterprises; Konzernverantwortungsinitiative; Initiative Multinationales Responsables; “Initiative”) is not only hotly debated among the many Swiss based international companies that would be affected by it, but also among lawmakers in Berne. In short, the Initiative, which is expected to be voted upon by the Swiss people, proposes that enterprises shall be held liable before a Swiss court if one of its controlled enterprises violates human rights or environmental standards abroad. These enterprises will have additional duties and will have to monitor and report on the compliance with these duties.

The Initiative raises a bundle of legal questions of which we focused on one: Its scope of applicability. As we will see, a far reaching concept is proposed to ensure that a large number of enterprises is subject to the Initiative.

By Thomas U. Reutter / Annette Weber (Reference: CapLaw-2019-14)

Digital Assets – Proposed Amendments to the Legal and Regulatory Framework of Distributed Ledger Technology in Switzerland

Switzerland targets adjustments of the existing legal and regulatory framework of distributed ledger technology (DLT). The Federal Council initiated consultation on proposed amendments to, inter alia, civil law (including securities law), insolvency law, financial market law, and anti-money laundering regulation on 22 March 2019. This article summarizes the key points of the suggested adjustments and analyses their potential impact on market participants. The content of the rules may still be subject to changes in the ongoing legislative process. 

By Luca Bianchi / Fabio Andreotti (Reference: CapLaw-2019-15)

Reporting of Beneficial Ownership in Unlisted Companies according to Article 697j CO – Some Open Points

On July 1, 2015, new rules regarding reporting of beneficial owners of unlisted companies entered into force in Switzerland (for general remarks on the rules see CapLaw-2015-55). Even four years after their implementation, there are still a number of open questions in practice as regards the application of these rules, both from the perspective of the shareholders (subject to the obligation to report their beneficial owners(s)) and the companies (subject to the obligation to maintain a register of beneficial owners). One reason for these uncertainties is that the relevant provisions are incomplete and in many aspects leave room for interpretation. To date there is no case law that could provide guidance. A currently ongoing revision of the disclosure rules could bring some clarity.

By Alexander Wille / Lukas Held (Reference: CapLaw-2019-16)

Share Buy-backs – Reloaded | Insights into Selected Areas of Publicly Announced Share Buy-backs by Swiss Companies

Arbitrageurs are important players in the buy-back market, primarily because of certain tax considerations. One important driver is the repurchase price a company is permitted to offer in a share buy-back. Particular attention should be placed to secondary market transactions during a share buy-back (e.g., sales of ADRs). Novelties include VWAP-based buy-back programs and buy-backs executed via Dutch auction. 

By Hansjürg Appenzeller / Dieter Grünblatt (Reference: CapLaw-2019-17)

Public Exchange Offer for Panalpina

On 1 April 2019, DSV A/S, Hedehusene, Denmark and Panalpina Welttransport (Holding) AG, Zurich, Switzerland, have entered into an agreement on the terms and conditions of a combination by way of a public exchange offer by DSV for all publicly held registered shares of Panalpina for approximately CHF 4.6 billion.

IPO of Stadler

Stadler Rail AG, a leading global pure-play producer of rolling stock and related systems, successfully priced its IPO and listed its shares on the SIX Swiss Exchange. The offering consisted of 35,000,000 shares with an over-allotment option of 5,250,000 shares, all of which were offered (directly and indirectly) by Peter Spuhler.

IPO of Medacta

On 4 April 2019, Medacta Group SA, a pure play orthopaedics company, opened the IPO-season 2019 at SIX Swiss Exchange with the first day of trading of its shares. The shares of Medacta were priced at CHF 96.00 per share and on 3 May 2019, Medacta announced that the Joint Global Coordinators (Credit Suisse and Morgan Stanley) have partially exercised the over-allotment option in the amount of 438,472 existing shares at the offer price.