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

General Meetings of Stock Corporations in light of the Revised Swiss Code of Obligations

The following article is intended to outline the changes in relation to the general meeting of stock corporations under the revised Code of Obligations. The formal framework of the stock corporation remains unchanged, but the reform brings increased flexibility and administrative simplification in various areas, in particular by allowing the use of electronic means of communication. It will even be possible to hold a general meeting entirely by electronic means as a virtual general meeting. 

That this virtual concept works in practice has been confirmed in times of COVID-19. Due to the pandemic, the Swiss Federal Council has temporarily permitted virtual meetings based on a special legal basis, the COVID-19 Ordinance 2. However, although this test was successfully passed, virtual general meetings will under the new law – for practical reasons – presumably be reserved to small companies with only a few shareholders. For publicly listed companies with a large number of shareholders, the concept of physical general meetings will remain de facto the only method of holding a meeting of shareholders. 

One controversial issue arose in the final stage of the parliamentary debate of the reform relating to a practice of the independent proxy holders to inform the company or its Board of Directors in advance confidentially on the instructions received. The revised law presents a compromise in this respect.

By Peter Forstmoser / Thomas Hochstrasser (Reference: CapLaw-2020-53)

Changes affecting Shareholders’ and Minority’s Rights

One of the main objectives of the corporate law reform was to strengthen shareholders’ rights. And indeed, the reform will, albeit to a limited extent, strengthen the rights of shareholders, and those of minority shareholders’ in particular, in a number of ways. Most notably, certain threshold requirements for the exercise of minority rights are lowered, while in turn a two-thirds majority vote requirement will be introduced for certain important resolutions. Perhaps most notably, information and participation rights for minority shareholders in both listed and non-listed companies are made more accessible and to some extent likely more effective.

By Remo Decurtins / Jonas Hertner (Reference: CapLaw-2020-54)

Changes for Listed Companies under the Corporate Law Reform: Gender Quotas and Say-on-Pay

The corporate law reform brings about numerous revisions to the law affecting both private and listed companies as well as a number of revisions that apply to listed companies only. The following article provides an overview of certain changes for listed companies not described elsewhere in this issue of CapLaw.

By Daniel Raun / Annette Weber (Reference: CapLaw-2020-55)

The Capital Structure of Stock Corporations in Light of the Revised Swiss Code of Obligations

The following article will provide a brief overview of the most relevant revisions of the CO regarding the share capital. Having provided an overview, we will comment on the implications that these provisions will have on companies from a practical standpoint. 

By Peter Forstmoser / Reto Seiler (Reference: CapLaw-2020-56)

Revised Corporate Law to Facilitate Accounts in Non-Swiss Currencies and Interim Dividends

On 19 June 2020, the Swiss Parliament, after a lengthy legislative process, adopted a bill on a comprehensive corporate law reform that, inter alia, permits a share capital denominated in certain non-Swiss currencies and introduces the option for interim dividends and distributions. Both of these aspects are of particular importance for multi-national groups with subsidiaries located in Switzerland. In the following, we take a closer look into each of these two new Swiss corporate law features and address the respective requirements, consequences and potential need for action.

By Patrick Schärli / Patrick Sattler (Reference: CapLaw-2020-57)

Corporate Restructuring and Insolvency under Revised Swiss Corporate Law

On 19 June 2020, the Swiss Parliament adopted the most important revision of Swiss corporate law in years, thus concluding a process started almost two decades ago. The revision also comes with a number of changes which, in particular, aim at clarifying certain aspects relating to insolvency triggers and bankruptcy filing obligations. Such clarification complements the major revision of Swiss insolvency law (Sanierungsrechtsrevision) which entered into force in 2014 and had introduced a new, facilitated debt moratorium regime. 

By Tanja Luginbühl / Anja Affolter Marino (Reference: CapLaw-2020-58)

Nestlé’s Issuance of an aggregate of USD 4 Billion Notes through an Institutional (Rule 144A) Offering in the US

On 15 September 2020, Nestlé Holdings, Inc. successfully completed its issuance of USD 1.15bn 0.375% Notes due 2024, USD 750m 0.625% Notes due 2026, USD 1.1bn 1.000% Notes due 2027 and USD 1bn 1.250% Notes due 2030. The Notes are guaranteed by the Nestlé group’s Swiss parent company Nestlé SA. The offering of the Notes was conducted in reliance on Rule 144A and Regulation S under the U.S. Securities Act.

ADC Therapeutics SA’s Follow-on Offering on the New York Stock Exchange

On 23 September 2020, ADC Therapeutics SA (NYSE: ADCT), a Swiss-based late clinicalstage oncology-focused biotechnology company pioneering the development and commercialization of antibody drug conjugates, announced the pricing of its upsized follow-on public offering of shares in the United States, thus raising gross proceeds of approx. USD 204m. In addition, certain existing shareholders had granted the underwriters an option to purchase additional shares for an aggregate amount of up to USD 30.6m.

Placement of EUR 1.85 Billion Sustainability-Linked Bonds by Novartis

Novartis Finance S.A., a subsidiary of Novartis AG, issued EUR 1.85bn sustainability-linked bonds due 2028 with an interest rate of 0.000%. The bonds are the first of its kind in the healthcare industry and the first sustainability-linked bonds incorporating social targets, with bondholders entitled to receive a higher amount of interest if Novartis fails to meet its targets for expanding access to its innovative medicines. The Bonds are guaranteed by Novartis AG. They have been provisionally admitted to trading at the SIX Swiss Exchange and are expected to be listed there as well. Barclays Bank PLC, HSBC Bank plc, J.P. Morgan Securities plc and Société Générale acted as Joint Lead Managers and BNP Paribas, Credit Suisse Securities (Europe) Limited, Deutsche Bank Aktiengesellschaft and Mizuho Securities Europe GmbH as Co-Managers.

Zürcher Kantonalbank’s Issuance of CHF 275 Million 1.75% AT1 Write-Down Notes

On 30 September 2020, Zürcher Kantonalbank successfully placed CHF 275m 1.75% AT1 Write-Down Notes. The notes qualify as both additional tier 1 capital as well as going concern capital under Swiss regulations for systemically relevant banks. This transaction was the first transaction in Switzerland done in reliance on the exemption in the new prospectus regime of the Financial Services Act to have a prospectus that is pre-approved by a Swiss reviewing body.