As of 1 February 2024 the current per se Obligation of Issuers having only Bonds listed on SIX Swiss Exchange to publish their Financial Reports by way of an Ad Hoc Announcement is abolished.
By René Bösch / Patrick Schleiffer (Reference: CapLaw-2023-59)
The rules on ad hoc publicity of SIX Exchange Regulation applies to Swiss and non-Swiss issuers who have securities listed on the SIX Swiss Exchange, in case of non-Swiss issuers, however, only if they have no securities (be it equity or debt) listed in their home country. Accordingly, any issuer who exclusively has bonds listed on the SIX Swiss Exchange, but in case of non-Swiss issuers not at the same time in their home jurisdiction, is subject to the ad hoc publicity rules of the SIX Exchange Regulation. Conversely, if a non-Swiss issuer has also securities listed in its home jurisdiction (which according to the practice of the SIX Exchange Regulation do not have to be of the same type as those listed in SIX Swiss Exchange), it is not subject to the ad hoc publicity regime of SIX Exchange Regulation.
This regime has been criticized by issuers who only have debt instruments listed on the SIX Swiss Exchange. This is because pursuant to the current ad hoc publicity regulation, annual as well as interim reports of an issuer with listed securities on the SIX Swiss Exchange have always to be published by way of an ad hoc announcement, irrespective of the type of securities listed on SIX Swiss Exchange. Mere bond issuers noted that this is overreaching because debt securities have a risk profile that is different from that of equity securities, and therefore most financial statements published would in reality not contain price sensitive information in relation to debt securities. Moreover, for non-Swiss issuers of debt securities who do not have any equity or debt instruments listed in their home country that regulation was overly burdensome because of the formal and technical requirements they had to fulfill for the posting of the ad hoc announcements pursuant to the SIX regulations.
Recognizing the difference between equity and other type of securities, SIX Exchange Regulation, with effect as of 1 February 2024, has finally revised its listing rules and directive on ad hoc publicity to specify that annual and interim reports are only considered per se ad hoc relevant for those issuers who have a primary listing of equity securities on SIX Swiss Exchange. Accordingly, as of entry into effect of the amended rules on 1 February 2024, issuers who have only bonds listed on the SIX Swiss Exchange (and in the case of non-Swiss issuers, no securities in their home country) will only have to publish their financial reports by way of an ad hoc announcement if they are assessed by such issuers as price-sensitive for their SIX Swiss Exchange listed bonds. However, in the absence of near insolvency or similar situations, this will not often be the case.
It has to be noted that all other ad hoc publicity rules of SIX Exchange Regulation remain applicable to Swiss and non-Swiss bond issuers (with no securities listed in their home jurisdiction), i.e., they have to maintain a pull and push system with respect to their ad hoc announcements.
René Bösch (rene.boesch@homburger.ch)
Patrick Schleiffer (patrick.schleiffer@lenzstaehelin.com)