On 1 February 2024, a revision of SIX Exchange Regulation ("SER") regulations on ad hoc publicity and management transactions will enter into force. The amendments relate mainly to the disclosure of management transactions with related parties and to a change to the ad hoc publicity per se practice.
This Newsflash highlights the most important changes that should be taken into consideration by SIX-listed companies and their boards and executive management when dealing with management transactions and ad hoc publicity aspects.
General Rule: SIX-listed companies have to oblige their members of the board of directors and of the executive committee ("Manager") to notify their company of transactions involving the listed company's equity securities. The deadline for notifying the company is two trading days after the conclusion of the reportable transaction (Verpflichtungsgeschäft). The notified company, in turn, must report the information received to SER via the SIX electronic reporting platform within three trading days.
Transactions with related parties
While so far only the relevant transactions of a Manager's related parties had to be disclosed (if such transactions had been carried out under the significant influence of the Manager), as from 1 February 2024, also transactions between Managers and related natural or legal persons must be disclosed. These transactions must be sufficiently described when disclosing the transaction in order to ensure transparency (e.g. "sale of shares to a family member"). Related parties include i) domestic partners, ii) individuals living in the same household as the Manager, and iii) legal entities, partnerships and fiduciary institutions, if the Manager: (a) holds a management position within that entity, (b) controls the company directly or indirectly, (c) is a beneficiary of this company or institution.
Exemptions to reporting obligation
Exemptions to reporting obligations are mainly transactions related to establishing a pledge or usufruct, securities lending, inheritances / legacies, gifts, transfers due to marital property disputes and endowments for the purpose of establishing foundations under Swiss law.
Under the amended rules, however, if an exempt transaction involves a related party, the subsequent transaction with a third party will (newly) be reportable. This obligation applies regardless of whether the assets of the Manager are affected and regardless of whether the transaction is carried out with or without the significant influence of the Manager. In such cases, the reporting obligation remains with the Manager. It is also recommended that both the subsequent and the original exempt transaction be described in the respective disclosure. It follows that in order to ensure compliance, the relevant Manager may need to oblige the related party to communicate any subsequent third-party transaction.
Some duties that were already part of SER's practice are now explicitly laid down in the SER-regulations. They include the obligation to comprehensively disclose both, transactions in listed and unlisted securities (if any) if at least one category of the issuer's equity securities is listed. Specific guidance is now also provided on (i) the details required for the reporting of transactions in non-listed conversion or purchase rights and (ii) the methodology for calculating the total value of a transaction. Furthermore, SER explicitly introduces an obligation to immediately correct notifications if a previous notification turns out to be incorrect. In order to comply with this obligation, issuers will also need to instruct their Managers to inform them without delay of any errors identified in previous transactions notifications.
Incorporation of revised SIX-Rules / training as a tool for compliance
By 1 February 2024, the effective date of the revised SIX rules, SIX-listed companies and their boards and executive management will need to know, apply and incorporate the revised SIX-rules into their internal management transactions regulations / policies.
Keeping in mind that SER does not consider the mere distribution of written rules and guidelines management transactions to be a sufficient means to ensure compliance in this area, the revision of the SER framework on management transactions could also serve as a welcome opportunity to (re-)train board members and executive managers on their continuing and new duties under the SIX rules.
Changes to Ad hoc publicity rules
As a rule, SIX-listed issuers must inform the market of any price-sensitive facts which have arisen in its sphere of activity, meaning whose disclosure is capable of triggering a significant change in market prices. Whether to disclose a fact by means of an ad hoc announcement has generally to be determined on a case-by-case basis by the issuer.
Exceptions are annual and interim financial reports, which are currently treated as per se price-sensitive. As from 1 February 2024 only annual and interim financial reports of issuers with equity securities primary-listed on the SIX Swiss Exchange shall continue to be per se price-sensitive and thus be published via ad hoc announcement. Consequently, issuers of bonds or other debt instruments (without primary-listed equity securities) are no longer subject to a per se obligation but may decide on a case by case basis whether to publish their financial reports via ad hoc announcement or by simple press release.
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