During the summer break, the Issuers Committee of SIX Exchange Regulation (SER) updated its Circular No. 1 (Circular No. 1) on ad hoc publicity. The updates of June 28, 2023 relate mainly to the duty to label ad hoc announcements as such («flagging») and the content of ad hoc announcements. Similarly, SER has published several communiqués over the course of the last year providing guidance on its practice and interpretation of the applicable rules.
Under the ad hoc publicity rules, ad hoc announcements must be «flagged» as such. The updated Circular No. 1 reiterated the principle that it is not permitted to flag «pure marketing announcements» or mere repetitions of previously published price-sensitive facts as ad hoc announcements. In addition, the Circular No. 1 introduced a new paragraph stating that the «mixing of price-sensitive facts with pure marketing announcements in an ad hoc announcement is not permitted». These statements raise a number of important questions, which we will discuss below.
Relatedly, SER&#8217;s Communiqué 4/2022 dated July 7, 2022 pointed out that «important» facts such as updates to the financial calendar or invitations to and results of general shareholders meetings must not be published as ad hoc announcements unless those facts are indeed price-sensitive, which must be assessed by the issuer in an ex ante case-by-case analysis. For example, the results of a general shareholders meeting that approves all non-controversial proposals of the board of directors are – absent special circumstances – not price-sensitive and must therefore not be published as an ad hoc announcement.
There are several key take-aways from the above:
<ol>
<li>As regards the scope of ad hoc announcements, SER seems to be raising the bar. The old practitioner&#8217;s rule of «in doubt, pro ad hoc» no longer applies. Information, even if it is important for all market participants, must not be disseminated in an ad hoc announcement unless the issuer concludes ex ante that the information in this specific case qualifies as price-sensitive fact as defined in the SIX rules.
<ol>
<li>It may no longer be permissible to include both price-sensitive facts and other information in the same ad hoc announcement (no «mixing»).</li>
<li>While the updated Circular No. 1 declares the mixing of a pure marketing announcement with price-sensitive facts to be inadmissible, we believe that a more differentiated approach is warranted. The content of ad hoc announcements must comply with the SIX rules, which provide that ad hoc announcements must not only be factual and clear, but also complete, and be «formulated in such a way that the reasonable market participant can form an opinion as to the extent to which the content is price-sensitive» (15 paras. 1 and 2 Directive Ad hoc Publicity, DAH).</li>
<li>Accordingly, any additional information in the ad hoc announcement that is necessary or helpful for the market participant to analyze and comprehend the price-sensitive fact must be permissible. Such additional information must have a factual connection (Sachzusammenhang) with the price-sensitive fact and allow market participants to fully assess the content of the ad hoc announcement without recourse to other sources.</li>
<li>To give a few examples, in line with the above principle, earnings releases may contain prose commentary (be it a quote from the CEO or otherwise) or detailed financial information in addition to the price-sensitive headline figures. Ad hoc announcements of M&amp;A transactions may contain background information as to the transaction, its rationale and expected benefits, the parties involved etc. Finally, ad hoc announcements of clinical trial results may contain detailed information on the relevant study and product, its benefits for the patients, potential indications etc. The general «about [issuer]», «about [counterparty]» or «about [product]» information, «for more information» or similar links, contact details, information on upcoming investor relations or other key dates as well as similar information at the bottom of press releases may in our view also continue to be included in ad hoc releases.</li>
<li>Financial announcements such as the annual results that are «per se» price-sensitive (art. 4 para. 2 DAH) may contain all information that is also included in the report, whether or not this particular information is in fact price-sensitive.</li>
</ol>
</li>
<li>Announcing two or more price-sensitive facts in one ad hoc announcement continues to be permissible. For example, a transaction signed on the same date as the earnings release may be announced in (or together with) the earnings release.</li>
<li>While a mere repetition of price-sensitive facts that have already been disseminated in an ad hoc announcement is – of course – not permitted, it is still permissible to repeat such facts in subsequent ad hoc announcements about new price-sensitive facts if necessary or helpful for the context. For example, an ad hoc announcement of the (price-sensitive) closing of a transaction may again include the key facts already published in the ad hoc announcement of the signing.</li>
<li>Although the Circular No. 1 now states that the flag «must show the wording specified in the LR», i.e., «Ad hoc announcement pursuant to Art. 53 LR», it continues to be permissible to spell out the referenced legal basis (e.g., «Listing Rules» instead of «LR») or include a reference to the SIX Swiss Exchange (which may be helpful for companies with multiple listings). Accordingly, SER has not amended its FAQ dated January 1, 2022 on this point.</li>
</ol>
Overall, issuers will have to analyze (more) carefully in the future what information can (or must) be included in ad hoc announcements and what information must be published in separate «normal» press releases.
* * *
<h3>Further Information and Useful Links</h3>
The <a href="https://www.ser-ag.com/dam/downloads/regulation/listing/circulars/ic-cir1-en.pdf">updated Circular No. 1 of the Issuers Committee</a> dated June 28, 2023 specifies the revised provisions. <a href="https://www.ser-ag.com/dam/downloads/publication/commentaries/2022-03-21-guideline-dah-en.pdf">SER&#8217;s guidelines (formerly: commentary) on the ad hoc-publicity directive</a> dated March 21, 2022 as well as its <a href="https://www.ser-ag.com/dam/downloads/publication/news/Mailings/faq_kr_rlahp_cg_en.pdf">Answers to Frequently Asked Questions (FAQ)</a> dated January 1, 2022 provide helpful guidance for the interpretation of the rules.
Further helpful guidance can be found in Communiqués published by SER from time to time, see, e.g., the <a href="https://www.ser-ag.com/dam/downloads/regulation/listing/communiques-six-exchange-regulation/ser202302-en.pdf">Communiqué No. 2/2023</a> dated February 16, 2023 and the <a href="https://www.ser-ag.com/dam/downloads/regulation/listing/communiques-six-exchange-regulation/ser202204-en.pdf">Communiqué No. 4/2022</a> dated July 7, 2022.
Information on the last general revision of the SIX rules on ad hoc publicity in 2021 can be found <a href="https://www.homburger.ch/en/insights/revised-six-rules-on-ad-hoc-publicity">here (in English)</a> and <a href="https://www.homburger.ch/api/ms/2021/07/_/Revidierte-Ad-Hoc-Regularien-_-GesKR-2-2021.pdf">here (in German)</a>.

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On May 30, 2024, Aktiengesellschaft für die Neue Zürcher Zeitung (NZZ) announced the acquisition of a 25%-stake in APG SGA SA (APG|SGA) from the two anchor shareholders JCDecaux SE and Pargesa Asset Management S.A. for a total consideration of CHF 165 m. The transaction is expected to close in the coming days. JCDecaux SE and Pargesa Asset Management S.A. will remain shareholders in APG|SGA with respective stakes of 16.44% and 13.86%.
The Homburger team advising NZZ is led by Anna Peter and Daniel Daeniker and includes Héloïse de Jamblinne, Matthias Müller, Norina Tröhler and Micha Fankhauser (all Corporate / M&amp;A), Jürg Frick and Stefan Bindschedler (both Financing), Richard Stäuber and Katharina Bratvogel-Wilk (both Competition), Gregor Bühler and Gabriel Kasper (both IP / IT), Frédéric Fitzi (Employment), as well as Dieter Grünblatt and Philippe Weber (both Tax).

Homburger advised NZZ on the acquisition of a strategic 25%-stake in APG|SGA, a leading Out-of-Home Media company in Switzerland

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On May 22, 2024, Swixx Biopharma, a Swiss-based global commercial platform dedicated to unlocking access to innovative medicines worldwide, announced its strategic expansion into Latin America by acquiring Laboratorios Biopas. Biopas is a leading pharmaceutical company in Latin America, specializing in the in-licensing, marketing, and sale of cutting-edge specialty pharmaceutical products, with annual sales of approx. USD 220 m. The founders of Biopas will become shareholders of Swixx Biopharma. The transaction is expected to close in June or July 2024, subject to regulatory approvals and customary conditions.
The Homburger team advising Biopas and its founders comprises Andreas Müller, Anna Peter, Hans Glent Abildgaard and Harun Cetin (all Corporate / M&amp;A), Stefan Bindschedler (Financing and Investment Products) as well as Reto Heuberger and Philippe Weber (both Tax).

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On March 13, 2024, Galderma Group AG (Galderma), the pure-play dermatology category leader, announced the launch of its Initial Public Offering (Offering) on the SIX Swiss Exchange. The Offering consists of up to 40,453,467 newly issued shares and up to 276,909 existing shares sold by one of its shareholders, Sunshine SwissCo AG (EQT), with an over-allotment option of up to 6,109,158 existing registered shares granted by EQT together with the Abu Dhabi Investment Authority (ADIA) and Auba Investment Pte. Ltd.
Based on the offer price range between CHF 49 and CHF 53 resulting in an offer size of approximately CHF 2.3 billion (assuming the over-allotment option is exercised in full), the implied market capitalization of Galderma is estimated between CHF 11.8 billion and CHF 12.6 billion. The listing and the first day of trading are expected to take place on March 22, 2024. Galderma will be included in the Swiss Performance Index (SPI).
Homburger acts as issuer&#8217;s, selling shareholder&#8217;s and transaction counsel to Galderma and EQT. The team is led by Frank Gerhard, Lorenzo Togni and Margrit Marti (all Capital Markets; Corporate/M&amp;A) and comprises Micha Fankhauser, Estelle Piccard, Jasmin Künzle, Héloïse de Jamblinne, Lucas Forrer and Daniel Wenzinger (all Capital Markets; Corporate/M&amp;A), Andreas Müller and Anna Peter (Employment and Executive Compensation), Jürg Frick, Stefan Bindschedler, Daniel Junginger and Sarah Fasel (all Financing and Investment Products), Stefan Oesterhelt and Laetitia Fracheboud (both Tax).

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Homburger advised NZZ on the acquisition of a strategic 25%-stake in APG|SGA, a leading Out-of-Home Media company in Switzerland

Homburger advises on the sale of Biopas to Swixx Biopharma

Homburger advises Galderma on its IPO on SIX Swiss Exchange

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