New Prospectus Requirements: A Corporate Issuers' Perspective

Author:Dr. Rashid Bahar and Urs Kägi
Profession:Baer & Karrer

On June 15 2018, the Swiss Parliament adopted the Swiss Financial Services Act (FinSA). In the meanwhile, the Swiss Federal Council opened a consultation process regarding the Financial Services Ordinance (FinSO), implementing the provisions of the FinSA, which will last until February 6 2019. Together with the new Swiss Financial Institutions Act, the FinSA and the related implementing ordinances are expected to enter into force on January 1 2020. These laws are part of an entirely new regulatory framework governing the Swiss financial markets.

The new prospectus rules entail a radical change for securities offerings in Switzerland. This article provides an overview of those new prospectus requirements which are generally relevant for corporate issuers.

New duty to prepare and obtain approval of prospectuses

Until now, Swiss prospectus requirements were incomplete and partially outdated. Except for issuers listed at Swiss stock exchanges, there was no obligation to file or obtain the approval for a prospectus under Swiss law. In contrast, the FinSA takes on the model of the EU-Prospectus Regulation and introduces a regulatory obligation to prepare a prospectus in connection with any public offering of securities or the admission of securities to trading on a Swiss trading venue. The term 'public offering' should be construed broadly. The obligation will apply indistinctly to primary and secondary offerings and any offer to an undetermined circle of persons will be deemed to be a public offering. In contrast, offerings outside of Switzerland will not be subject to this obligation, even if they relate to securities issued by Swiss issuers.

The obligation to prepare a prospectus will be subject to various exemptions modelled to a large extent on the EU Prospectus Regulation, including public offers:

to professional investors, to fewer than 500 investors, to investors who acquire securities for a consideration in excess of CHF 100,000, for securities with a denomination of more than CHF 100,000, or raising less than CHF 8 million in total over a period of 12 months. Similarly, various types of transactions with securities will be exempt from the obligation to issue a prospectus, including offerings made in connection with employee participation plans and various corporate transactions. Furthermore, the FinSA provides for exemptions relating to the admission of trading for securities that are already admitted to trading on a Swiss or...

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