FinSA/FinIA – Challenges, Duties, Ways of Implementation

(FIDLEG/FINIG – Herausforderungen, Pflichten, Gestaltungsmöglichkeiten)

Friday, 10 May 2019, SIX ConventionPoint Zurich

St. Gallen Corporate Law Day

(St.Galler Gesellschaftsrechtstag)

Thursday, 23 May 2019, SIX ConventionPoint Zurich

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. The board of directors of Panalpina has resolved to support the public exchange offer by DSV and to recommend the acceptance of DSV’s public exchange offer to its shareholders. Panalpina’s three major shareholders, who in total hold approximately 70% of the share capital in Panalpina, have committed to tender their Panalpina shares into the exchange offer.

Rights Offering of Cavotec SA

On 10 January 2019, Cavotec SA completed a capital increase by way of a rights offering to its shareholders in the amount of approximately CHF 22.4 million. The Cavotec group, with its Swiss holding company listed on Nasdaq Stockholm, is a leading engineering group that designs and manufactures automated connection and electrification systems for ports, airports and industrial applications worldwide. 80.5% of the shareholders of Cavotec SA exercised their subscription rights in the rights offering. The remaining new shares not subscribed were allotted to investors who had subscribed for shares without subscription rights, pursuant to the allocation procedure described in the prospectus of 6 December 2018. The offer price was set at SEK 13 per share.

Acquisition of Medpex’s e-commerce activities by Zur Rose Group

On 18 October 2018, Zur Rose Group AG, Europe’s leading e-commerce pharmacy which is listed on SIX Swiss Exchange, announced that it is acquiring the e-commerce activities of Germany’s third largest online pharmacy medpex. The transaction was subject to regulatory clearances and closed on 4 January 2019.

Santhera Pharmaceuticals Holding Placement of Shares

Santhera Pharmaceuticals Holding AG (Santhera) placed 3,133,334 new shares at an offer price of CHF 7.50 per share. The shares were placed by way of an accelerated bookbuilding procedure in a public offering in Switzerland, in private placements outside of the United States and Switzerland and in private placements within the United States to qualified institutional buyers. The shares were issued under exclusion of the existing shareholders’ subscription rights through an ordinary capital increase resolved by an extraordinary shareholders’ meeting.

Rights Offering of Kuros Biosciences

On 18 December 2018, Kuros Biosciences, a life science company focusing on the development and marketing of orthobiologics, completed a capital increase by way of a rights offering to its shareholders in the amount of approximately CHF 16.1 million. 34.6% of the shareholders of Kuros Biosciences exercised their subscription rights in the rights offering. The remaining new shares not subscribed were placed in the market. The offer price was set at CHF 2.50 per share.

Mirabaud, Octavian and Helvetische Bank acted as Managers.

Note from the Editors

The new Swiss Financial Services Act (FinSA) and Financial Institutions Act (FinIA) were enacted by the Swiss Parliament in June 2018, and are currently expected to enter into effect on 1 January 2020. While the FinSA introduces uniform prospectus rules generally applicable to all offerings of securities in Switzerland and comprehensive rules of conduct for providers rendering financial services in Switzerland, the FinIA introduces the prudential supervision of all financial services providers operating a portfolio or asset management business in Switzerland and uniform licensing requirements for financial intermediaries other than banks and insurance companies. With drafts of the implementing ordinances to the FinSA and FinIA having just been published, we deem it the right time to provide you with an update on this new legislation and a first assessment of the draft implementing provisions.

The editors.

The New Swiss Prospectus Regime

In June 2018 the Swiss Federal Parliament passed the Financial Services Act and the Financial Institutions Act, and on 23 October 2018 the Swiss Federal Council presented the ordinances implementing these acts for public consultation until early February 2019. It is expected that the acts and its ordinances will become effective on 1 January 2020. Modeled largely after the EU prospectus framework, the new prospectus regime marks 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-2018-56)

The New Reviewing Body

The Financial Services Act establishes a new prospectus regime in Switzerland requiring the publication of a prospectus for public offerings of securities and the admission to trading on a trading venue. It introduces a new regulatory body – the reviewing body (Prüfstelle) – to be authorized by FINMA and responsible for review and approval of prospectuses. This article discusses the setup and operation of such reviewing body, the prospectus requirements and content as well as the review and approval of the prospectus.

By Sabir Sheikh / Peter Probst (Reference: CapLaw-2018-57)