Commentary of SIX Exchange Regulation on the Directive on ... · 11/1/2011 · publicity pursuant...

Commentary of SIX Exchange Regulation on the Directive on Ad hoc Publicity of 29 October 2008 (DAH Commentary)

Completely revised version as of 1 November 2011

Commentary of SIX Exchange Regulation on the Directive on Ad hoc Publicity as of 29 October 2008 (DAH Commentary)




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Commentary of SIX Exchange Regulation on the Directive on Ad hoc Publicity (DAH)

Note (N)

Introduction This Commentary supplements the Directive on Ad hoc Publicity (DAH) with further details regarding issuers’ obligation to disclose potentially price-sensitive facts pursuant to Art. 53 f. of the Listing Rules (LR). It also covers the practices of the SIX Swiss Exchange judicial bodies in connection with ad hoc publicity. The Regulatory Board is authorized to issue the Directive under Art. 8 of the Swiss Federal Act on Stock Exchanges and Securities Trading (Stock Exchange Act, SESTA) as well as Art. 1, 6, 41 and 53 LR.

1

Of the three DAH language versions (German, French and English), the original German version takes precedence.

2

A different font has been used for comments that refer to decisions / practices of the SIX Swiss Exchange judicial bodies to make them stand out.

3

The DAH must be interpreted in line with the SESTA and the LR. In cases of doubt, the interpretation that best serves the purposes of ad hoc publicity – i.e. ensuring the highest level of equal opportunities, transparency and preventing insider trading – must be chosen.

4

Background The rules on ad hoc publicity are intended to ensure that issuers inform the public in a fair and transpar-ent manner and at the earliest possible stage about significant developments and changes in their com-pany. Transparency and equal treatment for investors, together with the proper functioning of the securi-ties markets, must be guaranteed by providing both actual and potential market participants with new and potentially price-sensitive information quickly and fairly. Ad hoc publicity should also encourage correct pricing. Furthermore, ad hoc publicity prevents insider trading by rapidly reducing information advantages.

5

http://www.six-exchange-regulation.com/admission_manual/06_16-DAH_en.pdf

http://www.six-exchange-regulation.com/admission_manual/03_01-LR/en/45035996352441739.html

http://www.six-exchange-regulation.com/download/admission/regulation/federal_acts/sesta_en.pdf


http://www.six-exchange-regulation.com/admission_manual/03_01-LR/en/18014398587787787.html#9007199333085323





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Article/ para.

DAH SIX Exchange Regulation commentary Note (N)

I. General provisions

Purpose

Art. 1 This Directive details the in-formation on the obligation of issuers to disclose potentially price-sensitive facts (ad hoc publicity pursuant to Art. 53 LR). The purpose of ad hoc publicity is to ensure that is-suers provide the public with true, clear and complete in-formation on significant events arising in the course of their business activities.

Issuers must make their media releases (ad hoc notices) available to the public. This must be done in accordance with the rules on ad hoc publicity. Information is to be addressed to all actual and potential market participants. The term “market participant” is to be understood in the broad sense and includes both investors and financial intermediaries. The latter include professional intermediaries who bring in-vestors into contact with companies seeking capital, advise them on investment decisions or assist them in putting such decisions into practice.

6

For the requirements regarding the veracity, clarity and completeness of ad hoc notices, please see the comments on Art. 15 DAH.

7

Issuers must take due account of the requirements for transparency and equal opportunities for all market participants in their handling of information. The public has the right to be notified fairly, i.e. quickly and adequately in terms of content, of potentially price-sensitive information

(Case no. 6 practice AhP; Decision by the Committee of the Admission Board dated 23 March 2005 [ZUL/AHP/IV/05]).

8

The Committee of the Admission Board ruled that the publication of potentially price-sensitive in-formation relating to an issuer by third parties does not release the issuer from its obligation to publish the same information itself in an ad hoc notice of its own: Information published by the issuer itself is - as a rule - perceived by market participants as being more credible than corre-sponding reports by third parties. Investors will therefore normally attach more importance to ad hoc notices from the company itself (Decision by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04]).

9

In addition, third-party reports are practically never addressed to exactly the same recipients as issuers’ ad hoc notices (see Art. 7 ff. DAH).

10

http://www.six-exchange-regulation.com/admission_manual/06_16-DAH/en/9007199354041867.html

http://www.six-exchange-regulation.com/download/admission/being_public/sanctions/praxis/praxis_case_06_en.pdf

http://www.six-exchange-regulation.com/download/admission/being_public/sanctions/publication/decision_ahp_200605_de.pdf

http://www.six-exchange-regulation.com/download/admission/being_public/sanctions/publication/decision_ahp_011104b_de.pdf




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Article/ para.


According to current SIX Exchange Regulation practice, the disclosure obligations under takeover law and Art. 20 SESTA on the one hand and the rules on ad hoc publicity on the other hand are applied independently of each other. They are to be regarded as equally important, but their purposes differ.

11

Contractual agreements generally do not release issuers from their obligation to publish an ad hoc no-tice. For example, an agreement between an issuer and another company stipulating that potentially price-sensitive facts are to be treated as confidential is not in itself sufficient to justify a failure to disclose such facts. Likewise, a contractual obligation to treat the content of a contract for the construction of an industrial facility as confidential does not release the issuer from the obligation to publish an ad hoc no-tice that allows market participants to gauge what impact the contract will have, for example, on the company’s income or finances.

12



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Article/ para.


Scope of applicability

Art. 2 para. 1

1 This Directive applies to all

issuers whose securities are listed on SIX Swiss Exchange Ltd ("SIX Swiss Exchange") and whose registered offices are in Switzerland.

This clause sets the scope of applicability of the DAH. 13

Art. 2 para. 2

2 It also applies to issuers

whose registered offices are not in Switzerland but whose securities are listed on the SIX Swiss Exchange and not in their home country.

The DAH is to be observed by issuers who have equity securities (e.g. equity in the form of bearer and registered shares, participation certificates and profit sharing certificates) or debt securities (e.g. in the form of bonds) listed on the SIX Swiss Exchange. In principle, it also covers collective investment schemes pursuant to the Swiss Federal Act on Collective Investment Schemes (CISA).

14

With regard to the conflict of laws, the DAH also states that the only case in which it is not applicable to companies that have participation rights or debt claims listed on the SIX Swiss Exchange but do not have their registered office in Switzerland is when such companies are also listed on an exchange in their home country. The home country is determined under Swiss law. If companies that do not have their registered office in Switzerland have a listing on an exchange outside their home country in addition to having participation rights or debt claims listed on the SIX Swiss Exchange (and no listing on an exchange in their home country), the DAH nevertheless applies. The DAH always applies to com-panies that have their registered office in Switzerland and participation rights or debt claims listed on the SIX Swiss Exchange, regardless of any listing in another country. Under Art. 626 point 1 of the Swiss Code of Obligations (CO), the articles of association of a Swiss stock corporation state the location of its registered office.

15

Companies whose securities are listed on an exchange in their home country are not subject to the pro-visions of the DAH, even if the securities listed on the home exchange are not the same as those listed on the SIX Swiss Exchange. Art. 20 f. of the Directive on the Listing of Foreign Companies (DFC) apply to these issuers in some cases.

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Article/ para.


Examples: 17

- A South African company without its registered office in Switzerland has shares listed on the SIX Swiss Exchange. Its shares are also listed in New York, but not in its home country of South Africa: The DAH applies.

18

- A company under Swiss law with its registered office in Switzerland has shares listed on the SIX Swiss Exchange and in London. The company’s management is based in London under English law: The DAH applies.

19

- A company with its registered office in Switzerland has only bonds (debt claims) listed on the SIX Swiss Exchange: The DAH applies.

20

- A company with its registered office in Spain has shares listed on the Madrid exchange and bonds listed in Switzerland: The DAH does not apply.

21

- A company with its registered office in Paris has bonds listed on its home exchange and shares listed on the SIX Swiss Exchange: The DAH does not apply.

22



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Article/ para.


II. Potentially price-sensitive facts

Potentially price-sensitive facts

Art. 3 The disclosure requirement applies only to qualified events. In order to be deemed relevant within the meaning of Art. 53 LR, an event must be significantly price-sensitive and hence capable of affect-ing the average market partic-ipant in his investment deci-sion.

There is no exhaustive list of potentially price-sensitive facts (see Decision by the Committee of the Admission Board dated 7 January 2005 [ZUL/AHP/IV/04]).

23

Furthermore, there are no fixed thresholds or percentages that qualify job cuts, company acquisitions or changes in profit, for example, as potentially price-sensitive and thus subject to the rules on ad hoc publicity. The specific circumstances in each case determine whether or not a fact is potentially price-sensitive. For example, statements on a particular point may be deemed potentially price-sensitive in one bank’s annual report, but not in that of another bank (see Decision by the Sanction Commission dated 28 October 2010 [SaKo 2010-CG-III/10, SaKo 2010-AhP-I/10]). The examples in N 52 ff. should be regarded merely as typical subjects of ad hoc notices and not as an exhaustive list (with regard to cases of doubt, see also Decision by the Sanction Commission dated 30 November 2010 [SaKo 2010-AHP-II/10, SaKo-CG-IV/10]).

24

In connection with Art. 53 LR, special attention must notably be paid to the terms quoted below. 25

- An event or a situation in the present or past which can be proven is deemed to be a fact (Deci-sion by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04]).

26

- Mere rumors, third-party earnings estimates, ideas, planning options and intentions are not subject to the scope of the ad hoc publicity (see Decisions by the Disciplinary Commission dated 15 May 2002 [DK/AHP/I/02] and dated 30 July 2004 [DK/AHP/I/04]).

- For further details of the distinction between facts and rumors, see N 209.

27

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Article/ para.


- The decision by an issuer’s executive board to pursue a specific strategy – in contrast to sim-ple ideas and planning options – qualifies as a fact because it sets a binding target to be fol-lowed by the issuer (Decision by the Disciplinary Commission dated 15 May 2002 [DK/AHP/I/02]).

28

- Intentions do not as a rule have to be communicated through ad hoc notices. However, there may not always be a clear dividing line between a simple intention and a plan / decision by the issuer.

- Example: If the board of directors decides to sell several key properties for a price well above their market value or as a result of a change in strategy but makes the sale contingent on a preliminary de-cision by the tax authorities, this can no longer be seen as a simple intention because the implemen-tation of the decision only rests on one external event (in legal terms, the decision is resolutive or sub-ject to a suspensive condition). This is a potentially price-sensitive fact (regarding the permissibility of postponement of disclosure, see N 180 ff.).

29

Issuers are not obliged to respond to rumors circulating on the market with an ad hoc notice. 30

The Sanction Commission stated in its Decision dated 15 December 2009 that issuers do not have to publish an ad hoc notice mentioning that they meet or could meet their contractual obli-gations if they have already explained to just one newspaper or investor that these obligations are being complied with (Decision by the Sanction Commission dated 15 December 2009 [SaKo 2009-AHP I/09]).

31

SIX Exchange Regulation’s stance on voluntary responses to rumors is as follows: If a company decides to respond to a rumor or query even though it is not obliged to do so, and if the facts in question, e.g. the ability or inability to meet certain extensive financial obligations at the appropriate time (e.g. compliance with covenants), could potentially have a significant influence on the price, the voluntary response must be made in the form of an ad hoc notice. This is the only way to ensure that market participants are in-formed equally.

32

Forecasts based solely on expectations or hopes are not to be regarded as facts. However, fore-casts may qualify as facts if they are largely based on other facts. Various factors must be taken into consideration in this respect, including the timing and probability of the forecast as well as the position of the person making it. The more a forecast is based on facts and the smaller the role played by supposition and extrapolation, the higher its probability is (Decision by the Commit-tee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04]; Decision by the Disciplinary Commission dated 18 June 2007 [DK/AHP/III/06]).

33








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Article/ para.


In particular, forecasts or estimates based mainly on facts are to be regarded as facts (Decision by the Disciplinary Commission dated 18 June 2007 [DK/AHP/III/06]).

34

The existence of a fact within the meaning of Art. 53 LR does not always require a formal decision to have been passed by the body responsible for passing decisions regarding the approval of the annual report. This would in some cases be contrary to the purpose of the ad hoc publicity requirements as a means of preventing insider trading and of informing the market. This can, e.g, be the case where the potentially price-sensitive figures are already established and known by the top management, but the formal approval of the report by the responsible body will take place only later due to reasons of timing. In such a situation the decisive facts are already given and known to the company but one waits for the formal approval by the responsible persons. Particularly in such cases there is the risk that employees use their information advantages for enrichment.

35

Development and decision-making processes within a company normally pass through several stages before they come to fruition. As a rule, issuers must not wait to publish an ad hoc notice until they know all the details of a fact (Decision by the Committee of the Admission Board dated 4 September 2006 [ZUL/AHP/II/06]; regarding the requirement for veracity, clarity and completeness, see N 167 ff.).

36

In the case of complex events, especially in connection with company takeovers, it may be expedient or even necessary to inform the public in a number of stages. This may also be the case in connection with a capital increase, among other things. In certain circumstances, already plans by one or more major investors to provide financial support must be disclosed under the ad hoc publicity requirements before the contractual partners have agreed on all the details of the transaction. A further press release must be published when the contracts are signed etc. (regarding the permissibility of postponing disclosure, see N 180 ff. and Appendix 4 of this Commentary).

37

Facts occurring in an issuer’s sphere of activity: 38

A fact that affects an issuer but originates from outside the company is not in principle subject to the ad hoc publicity requirements. However, if such an external event results in a potentially price-sensitive fact within the company’s sphere of activity, the company must publish an ad hoc notice nevertheless.

39



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Article/ para.


The following are examples of facts that are not in principle subject to the ad hoc publicity requirements because they do not arise in the issuer’s sphere of activity: general market data (economic policy or macroeconomic developments, exchange-rate fluctuations, a trade embargo), the launch of a rival pro-duct, buy or sell recommendations from analysts.

40

In exceptional cases, facts not arising in the issuer’s sphere of activity may fall under the ad hoc publicity requirements when they have a direct effect on the issuer’s internal operations. Exam-ples of such facts include decisions by an antitrust or supervisory authority (e.g. concerning the approval of a new drug) or a court, the termination of an important contract by a key business partner and the bankruptcy of such a partner or its need for financial restructuring (see also Decision by the Commit-tee of the Admission Board dated 4 September 2006 [ZUL/AHP/II/06]).

41

With regard to court cases that may have broad repercussions, it is advisable to inform the market both when the lawsuit is begun and when the outcome is known.

42

In case of a takeover it is assumed that the offer for takeover is, as a rule potentially price sensitive for the listed target company.

43

An ad hoc notice must also be published under certain circumstances by a listed offeree company if the company offering to take it over has published a press release about an important interim event regard-ing the still ongoing offer. The issuer may refer to the offering company’s press release. In addition, an ad hoc notice from the offeree company is required if it passes comment on the public offer in connec-tion with a takeover bid (see Art. 29 SESTA) and the comment contains information that is potentially price-sensitive. If the offeror is a listed company it has to examine in each case whether the take over or the interim event is potentially price-sensitive for it. If required, it has to publish an ad hoc notice.

44

Regarding the relationship between the disclosure obligations under takeover law and the rules on ad hoc publicity, see N 11. For more information regarding take over see also N 83 f.

45

In exceptional cases, a change in the ownership structure or in the pool of shareholders may also be price-sensitive and thus require publication in an ad hoc notice. This is the case in particular if the change can affect the controlling interests or the majority of voting rights at the annual general meeting or if, due to the change, legal thresholds for the exercise of certain shareholders’ rights are crossed. Furthermore, a well known investor “joining” or “leaving” or a significant change in such an investor’s holding may be potentially price-sensitive (see also N 56).

46




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Article/ para.


Fact that is not of public knowledge: 47

A fact does not qualify as public knowledge just because third parties, such as certain media or analysts, e.g., have reported on it. Thus, a fact reported in an article on a potentially price-sensitive fact affecting an issuer does not release the issuer from the obligation to publish an ad hoc notice on the subject. Investors attach more importance to original statements by the com-pany than reports by third parties (see Decision by the Disciplinary Commission dated 22 July 2002 [DK/AHP/II/02]; see also N 9 f.).

48

If a fact has essentially already been published in an ad hoc notice, any details relating to it are not as a rule potentially price-sensitive. Thus, the Sanction Commission deemed further infor-mation relating to previously announced job cuts as details of these cuts and therefore held the further information for not potentially price-sensitive (Decision by the Sanction Commission dated 15 December 2009 [SaKo 2009-AHP I/09]).

49

Potential of the fact to have a significant influence on the price (price-sensitivity): 50

The potential, i.e. the possibility of a significant change in the price, is sufficient (ex ante view). There is no need for an actual change in the price (rise or fall; see Decision by the Committee of the Ad-mission Board dated 23 January 2007 [ZUL/AHP/IV/06]; Decision by the Sanction Commission dated 30 July 2007 [SaKo-AHP/I/07]; see also Appendix 3 of this Commentary).

51

Examples: 52

- Structural changes: mergers, acquisitions (e.g. report by the board of directors in accordance with Art. 29 SESTA, regarding acquisitions see also N 11 and 37), spin-offs, asset transfers, restructuring (regarding restructuring, see Case no. 5 practice AhP).

53

- The commencement of talks on a possible takeover may be sufficient on its own to constitute a price-sensitive fact (unpublished decision by the Committee of the Admission Board dated 31 May 2001; see Rolf H. Weber, Praxis der SWX Swiss Exchange zur Ad hoc-Publizität, SZW 2002, p. 297 ff., p. 298).

54

- Changes in capital: capital increase or decrease, share buyback program, change in the nature of

participation rights (e.g. conversion of participation certificates into shares). 55








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Article/ para.


- Significant shifts in the shareholder structure: The disclosure of shareholdings under Art. 20 SESTA does not prevail over the rules on ad hoc publicity (see N 11). A significant shift in the share-holder structure may therefore be a potentially price-sensitive fact in some cases, for example if there are shifts concerning key shareholders that have a substantial influence on the company’s decision-making. In such cases, the company must publish an ad hoc notice as soon as it learns of the pur-chase or sale of the holding (see also Decision by the Sanction Commission dated 19 November 2007 [SaKo/AHP/III/07]). The provisions of the SESTA concerning the disclosure of shareholdings must be observed independently of and in parallel to the rules on ad hoc publicity. This applies in particular to the different deadlines for reporting and publishing changes in the shareholder structure.

56

- Staff changes: every change in the composition of the board of directors or executive board. Issuers have no power of discretion in determining the potential price-sensitivity of changes in the board of directors or executive board. In particular, no distinction is drawn between differ-ent executive board functions – membership of the executive board is the only decisive crite-rion. The departure of a member of the board of directors or executive board must be pub-lished immediately. The same applies in principle to the nomination of a member of the board of directors. Changes in the board of directors must also be disclosed when the member in question represents the main shareholder either formally or de facto on the board of directors (Decisions by the Sanction Commission dated 30 July 2007 [SaKo/AHP/I/07], dated 19 November 2007 [SaKo/AHP/III/07], dated 31 January 2008 [SaKo-AHP-VI/07] and dated 18 December 2009 [SaKo 2009-MT III/09, SaKo 2009-MP I/09, SaKo 2009-AHP III/09]; Sanction Decision by SIX Ex-change Regulation dated 22 December 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]; see also N 88, 192).

57

Staff changes affecting other key positions within the company may also be potentially price-sensitive. A change in the external auditors must be published by an ad hoc notice if the reasons for the change are potentially price-sensitive.

58

- Changes in business operations: new sales partners or strategic alliances, new and significant products, the withdrawal or recall of a significant product, significant contracts being signed or termi-nated.

59




http://www.six-exchange-regulation.com/download/admission/being_public/sanctions/publication/decision_ahp_310108_en.pdf


http://www.six-exchange-regulation.com/download/admission/being_public/sanctions/publication/decision_ser_ahp_221210_fr.pdf



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Article/ para.


Changes in business performance (N 75 ff.): substantial changes in profit (profit hike or profit col-lapse), discontinuation of dividends, profit warning or financial restructuring (regarding profit warnings: Case no. 2 practice AhP and Decision by the Disciplinary Commission dated 30 march 2003 [DK/AHP/I/03]; Decision by the Sanction Commission dated 30 November 2010 [SaKo 2010-AHP-II/10, SaKo 2010-CG-IV/10]; regarding profit collapse, see Case no. 4 practice AhP).

60

- Financial figures (annual and interim results, in particular revenues and profits, any reporting by segment, special developments in net new money, key exposures etc.) are in principle deemed to be potentially price-sensitive facts (see Decisions by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/III/04], dated 7 January 2005 [ZUL/AHP/IV/04], dated 23 March 2005 [ZUL/AHP/I/05] and [ZUL/AHP/IV/05] and dated 23 January 2007 [ZUL/AHP/IV/06]; Deci-sions by the Disciplinary Commission dated 24 March 2005 [DK/AHP/I/05] and dated 18 June 2007 [DK/AHP/III/06]; Decisions by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07], dated 25 March 2009 [SaKo-RLE II/08, SaKo-AHP I/08], dated 26 November 2009 [SaKo 2009-AHP II/09] and dated 28 October 2010 [SaKo 2010-CG-III/I, SaKo 2010-AHP-I/10]).

61

- Substantial reduction in liquid funds: A significant fall in liquid funds may also be potentially price-sensitive. For example, the Sanction Commission ruled that, in the case of a company with very lit-tle liquid funds left at its disposal, the sharp decrease in its funding should have been dis-closed in accordance with the rules on ad hoc publicity (Decision by the Sanction Commission dated 25 March 2009 [SaKo-RLE II/08, SaKo-AHP I/08]).

62

- Financial reports (annual and interim reports): These reports always contain potentially price-sensitive facts (see Decision by the Committee of the Admission Board dated 23 January 2007 [ZUL/AHP/IV/06]; Decisions by the Sanction Commission dated 19 November 2007 [SaKo/AHP/III/07] and dated 16 April 2009 [SaKo 2009–AHP/MP-II/08]).

63

- In addition to financial figures, other information contained in financial reports may be poten-tially price-sensitive, too (e.g. the outlook for subsequent periods, corporate governance chap-ters etc. (see also N 33 f.). As a general rule, therefore, the publication of a press release about the business performance does not replace the publication of the corresponding report in ac-cordance with the rules on ad hoc publicity (see Decision by the Committee of the Admission Board dated 23 January 2007 [ZUL/AHP/IV/06]; Decision by the Sanction Commission dated 28 Oc-tober 2010 [SaKo 2010-CG-III/10, SaKo 2010-AHP-I/10]).

64











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Article/ para.


For this reason, both the annual and interim reports should always be published in accordance with the rules on ad hoc publicity (see also Art. 15 DAH).

65

- Net asset value (NAV): The NAV is not the only potentially price-sensitive information for in-vestment companies. Publishing the NAV alone is not sufficient to render a financial report no longer potentially price-sensitive (Decision by the Committee of the Admission Board dated 23 January 2007 [ZUL/AHP/IV/06]; see also N 71).

66

- General meeting resolutions: insofar as the general meeting of shareholders did not pass potentially price-sensitive proposals by the board of directors or certain potentially price sensitive motions proved highly controversial either prior to or during the meeting. The board of directors losing a consultative vote may be potentially price-sensitive in exceptional cases.

67

- Exercise of shareholders’ rights: calling an extraordinary general meeting (Art. 699 para. 2 CO), adding motions to the agenda (Art. 699 para. 3 CO) or requesting a special audit (Art. 697a f. CO).

68

- Change in financial reporting standards: If the board of directors decides to change the applicable financial reporting standard (e.g. from IFRS to Swiss GAAP FER), an ad hoc notice must be published as soon as the decision is made. The change in financial reporting standards can have an influence on the quality of the information disclosed in the financial reports. This is important information for market participants.

69

- Qualified report by the external auditors: If the external auditors provide a qualified adverse audit opinion or conclude that they cannot provide an audit opinion at all, the issuer is obliged to publish an ad hoc notice to this effect.

70

- Net asset value (NAV): Investment companies must publish the NAV figure regularly, at least once a quarter (Art. 73 LR). The longer the time between NAV publications, the more likely it is that the NAV is a potentially price-sensitive fact that must be published in accordance with the rules on ad hoc pub-licity. Particular attention must be paid in this respect to the provisions concerning the recipients and timing of the publication (for comments on the relationship between NAV and financial reports, see Decision by the Sanction Commission dated 23 January 2007 [ZUL/AHP/IV/06] and N 66.

71







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Article/ para.


- Information on the itemization of risk exposures if such exposures, combined with the finan-cial situation of the borrowers behind them, could substantially influence the issuer’s econom-ic situation (Decision by the Sanction Commission dated 26 November 2009 [SaKo 2009-AHP II/09]).

72

- New strategies may be potentially price-sensitive under certain circumstances (Decision by the Disciplinary Commission dated 15 May 2002 [DK/AHP/I/02]).

73

- Large-scale job cuts (Case no. 6 practice AhP). 74

The following points must be taken into consideration in connection with changes in profit, takeovers and insolvency:

75

- Profit warning: A profit warning is understood to be an ad hoc notice from an issuer stating that the foreseeable profit or loss will not match the expectations raised by the issuer itself on the market. It

is a “correction” of the issuer’s prior guidance.

76

An issuer must only publish a profit warning if market participants’ expectations regarding its results were raised by the issuer itself and if the company’s business performance is likely to differ noteworthy from its prior guidance. If the issuer determines that its expected results will differ significantly from ex-pectations it previously raised, it must correct its own guidance in the spirit of good faith and fair dealing. The more precise the guidance given, the greater the need to correct it may be.

77

The company must not wait until it knows the exact figures before publishing the profit warning. Rather, the profit warning must be published as soon as a person in an executive management function or a non-executive director knows the approximate extent to which the actual figures will deviate from the prior guidance. An issuer was sanctioned, for example, after failing to inform the public by an ad hoc notice that its profit would fall short of the expectations it had raised due to its worsening financial situation (Decision by the Disciplinary Commission dated 31 March 2003 [DK/AHP/I/03]; De-cision by the Sanction Commission dated 30 November 2010 [SaKo 2010-AHP-II/10, SaKo-CG-IV/10]; see also Case no. 2 practice AhP).

78

The company’s declaration that the media had provided an accurate view of its financial situation was not sufficient to release it from its obligation to publish an ad hoc notice (Decision by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04]; see also N 9 f.).

79











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Article/ para.


There is no obligation to publish a profit warning if the expectations were raised by third parties. Howev-er, it may nevertheless make sense in such a case to correct the rumors, subject to the provisions of Art. 53 LR (see N 30 and 32). Another point that must be taken into consideration is whether the prereq-uisites for a profit collapse or a profit hike are fulfilled (see N 81).

80

- Profit collapse or profit hike: Issuers that have not published prior guidance must observe the rules on profit collapse and profit hike. If the profit / loss that is foreseeable or has been achieved de-viates significantly from the profit / loss achieved in the prior-year period, this constitutes a profit col-lapse in case of negative deviation and, respectively, a profit hike in case of positive deviation. If, however, an issuer has published prior guidance, it must observe the rules on profit warnings (see Case no. 4 practice AhP and Decision by the Sanction Commission dated 30 November 2010 [SaKo 2010-AHP-II/10, SaKo-CG-IV/10]). Profit collapse and profit hike both require the publication of an ad hoc notice. As regards the timing of the publication, the statements on profit warnings apply mu-tatis mutandis (see N 78).

81

Profit warning

- Issuer “corrects” its own prior guidance regard-ing financial figures.

- Foreseeable figures are noteworthy higher or lower than prior guidance.

- Timing of publication: as soon as issuer knows that prior guidance is unlikely to be met.

Profit collapse / profit hike

- Issuer has not published guidance on financial figures.

- Foreseeable figures are significantly lower or higher than prior year’s. Deviation must be bigger than in the case of a profit warning.

- Timing of publication: as soon as issuer knows of likely deviations.

82






17 | 54

Article/ para.


- Takeover (see also N 11, 43 ff.): When an issuer with participation rights listed on the SIX Swiss Ex-change is taken over, the question as to whether an ad hoc notice must be published may arise both for the offering company – insofar as it is subject to the ad hoc publicity obligations – and for the offer-ee company. In such cases, communication in several stages may be advisable under certain circum-stances (see N 109 on postponing disclosure). A planned takeover – regardless of whether it is friend-ly or hostile – is to be regarded as a potentially price-sensitive fact regarding the issuer as the offeree company. If the issuer finds out about the plan, it is in principle obliged to publish an ad hoc notice (regarding the permissibility of postponing disclosure, see N 180 ff.). If an issuer intends to take over another company, the potential price-sensitivity from its point of view depends on the specific circum-stances (e.g. size and economic importance of the companies involved, purchase price, change in strategy in connection with the acquisition etc.).

83

In this regard, it must be noted that any notifications and publications under the provisions of takeover law do not in principle release the issuer from its obligation to publish an ad hoc notice. The provisions of takeover law do not prevail over the rules on ad hoc publicity. This means, among other things, that an offeree company must publish ad hoc notices regarding new and potentially price-sensitive facts relating to a takeover bid. Any publications by the offering company or the Takeover Board do not re-place the publication of an ad hoc notice by the offeree company (see also N 11).

84

- Insolvency proceedings: Issuers are in principle subject to the rules on ad hoc publicity under Art. 53 LR as long as their participation rights are listed on the SIX Swiss Exchange, regardless of any ongoing insolvency or bankruptcy proceedings. Depending on the form and progress of the insolvency proceedings, the obligation to arrange ad hoc notices and publications may pass to the receivers or the administrator.

85




18 | 54

Article/ para.


Relevance

Art. 4 para. 1

1 A fact is to be considered

significantly price-sensitive if it can be expected to trigger a price change that is consider-ably greater than the usual price fluctuations.

As a rule, a fact is significantly price-sensitive if the average market participant would use it as the basis for an investment decision.

86

The following rule of thumb can be used as a guide: “Is this new fact that has not yet been published likely to influence the average market participant’s decision to buy, sell or hold the security in question because they believe the current market price does not sufficiently reflect it?”

87

Issuers must be given some powers of discretion in their information management because future cir-cumstances play an important role in ad hoc publicity. However, the Sanction Commission’s con-stant practice regarding changes in the membership of the board of directors and executive board leaves no room for discretion (see N 57; Decisions by the Sanction Commission dated 31 Jan-uary 2008 [SaKo-AHP-VI/07] and dated 18 December 2009 [SaKo 2009-MT III/09, SaKo 2009-MP I/09, SaKo 2009-AHP III/09]; see also Sanction Decision by SIX Exchange Regulation dated 22 Decem-ber 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]).

88







19 | 54

Article/ para.


Art. 4 para. 2

2 Whether or not a fact has

the potential to trigger a signif-icant price change must be decided on a case-by-case basis.

In assessing price-sensitivity, there can be no schematic reference to specific threshold values or per-centages, since many different factors may influence the price in each individual case (see Art. 3 DAH). If the information is capable of causing a significant change in the price, that is sufficient. Since the potential for price-sensitivity is the sole basis, it is immaterial whether the publication of the potentially price-sensitive information actually affects the price (Decision by the Disciplinary Com-mission dated 15 May 2002 [DK/AHP/I/02]; Decisions by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04] and [ZUL/AHP/III/04], dated 7 January 2005 [ZUL/AHP/IV/04], dated 23 March 2005 [ZUL/AHP/I/05] and [ZUL/AHP/IV/05] and dated 23 January 2007 [ZUL/AHP/IV/06]; De-cision by the Sanction Commission dated 13 November 2007 [SaKo/AHP/IV/07]).

89

In addition, there are no simple, technical criteria, such as the extent of a price fluctuation or transac-tion volumes, that can be used to assess how likely a fact is to have a substantial influence on the price (Decisions by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04] and dated 7 January 2005 [ZUL/AHP/IV/04]).

90

Potential price-sensitivity must be assessed individually in each case. Thus, the Sanction Com-mission ruled that the segment reporting and the corporate governance information were not price-sensitive in a specific case but did not rule out the general possibility of either being price-sensitive (Decision by the Sanction Commission dated 28 October 2010 [SaKo 2010-CG-III/10, SaKo 2010-AHP-I/10]).

91

If the price does not change after the publication of an ad hoc notice, this does not mean that the new facts were not potentially price-sensitive. Conversely, the fact that the price of a security rises or falls sharply after publication of information the issuer did not deem to be potentially price-sensitive does not necessarily mean that the information constituted a potentially price-sensitive fact. The assessment is made ex ante, not ex post. It is not possible to predict how market participants will behave with total accuracy (see also Decision by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04]; Decisions by the Sanction Commission dated 30 July 2007 [SaKo/AHP/I/07] and dated 31 January 2008 [SaKo-AHP-VI/07]).

92



















20 | 54

Article/ para.


III. Disclosure modalities

Time of disclosure

Art. 5 A potentially price-sensitive fact within the meaning of Art. 53 para. 1 LR must be dis-closed by the issuer as soon as it has knowledge of the main points (Art. 53 para. 2 LR).

An issuer is aware of a fact if a person in an executive management function or a non-executive director knows about it (see Art. 3 DAH and Appendix 3 of this Commentary).

93

The obligation to publish arises as soon as the information is known. 94

The fact is known (Art. 53 para. 2 LR and Art. 5 DAH) when: 95

- the requisite knowledge is possessed within the executive management or by a non-executive director (see Art. 3 DAH and Decision by the Sanction Commission dated 30 November 2010 [SaKo 2010-AHP-II/10, SaKo 2010-CG-IV/10]) and

96

- one such person is aware of the main points. 97

For this purpose, the executive management includes not only members of the executive board and executive directors, but also other individuals who can exert a substantial influence on the issuer’s deci-sion-making (de facto governing parties).

98

If, due to inadequate internal organization, key people do not know things they should know (see Art. 3 and Art. 11 DAH), this may constitute a violation of Art. 53 LR through organizational negligence.

99

Issuers must organize themselves in such a way that potentially price-sensitive facts can be disclosed to market participants in due time.

100

In this connection, see also Decisions by the Sanction Commission dated 16 April 2009 (SaKo 2009–AHP/MP-II/08) and dated 18 December 2009 (SaKo 2009-MT III/09, SaKo 2009-MP I/09, SaKo-AHP III/09).

101








http://www.six-exchange-regulation.com/admission_manual/06_16-DAH/en/9007199353864075.html#9007199353973899








21 | 54

Article/ para.


If a new member is elected to the board of directors, this is to be published in an ad hoc notice not after the next general meeting of shareholders but as soon as the board of directors has de-cided on the nomination and the person in question has agreed to stand for election (“breaking news”; see Decisions by the Sanction Commission dated 30 July 2007 [SaKo/AHP/I/07], dated 31 January 2008 [SaKo-AHP-IV/2007] and dated 18 December 2009 [SaKo 2009-MT III/09, SaKo 2009-MP I/09, SaKo 2009-AHP III/09]; Sanction Decision by SIX Exchange Regulation dated 22 Decem-ber 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]).

102

If a member of the executive board leaves the company or a new member joins, this must nor-mally be disclosed when the employment contract is terminated (at the time the notice of termi-nation is received or both parties sign an agreement) or, respectively, signed a contract of em-ployment (see Sanction Decision by SIX Exchange Regulation dated 22 December 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]).

103

If annual or interim results are available earlier than expected, these must be published, regardless of any previously set publication date.

104

A company was sanctioned, for example, after publishing its half-year earnings just one day be-fore the scheduled date of its half-year results presentation, since the board of directors had already been aware for some time that the figures were massively lower than in the prior-year period (see Case no. 4 practice AhP).

105

Apart from the cases of a profit warning, profit collapse or profit hike (N 75 ff.), financial figures are normally to be published once the report has been signed off by the relevant governing body. Issuers are granted a reasonable deadline – several days after sign-off – to publish the figures, provided no leak occurs.

106

If orderly and timely procedures are in place within a company, financial figures are normally to be published once the governing body responsible (under Swiss law: the board of directors) has signed them off (see Decision by the Disciplinary Commission dated 30 July 2004 [DK/AHP/I/04]). An-nual results are to be published as soon as the company is fully aware of the year-end figures (Decision by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07]). Where significant chang-es in profit have occurred, the statements under N 81 apply notwithstanding.

107













22 | 54

Article/ para.


If an important staff change (see N 57) is announced to staff, this fact must be published in an ad hoc notice at the latest when the staff are informed (cf. Decisions by the Sanction Commission dated 30 July 2007 [SaKo/AHP/I/07] and dated 31 January 2008 [SaKo-AHP-VI/07]).

108

In the case of an event with complex effects, communication in several stages may be advisable, since it can help to reduce the risk of information asymmetry (see N 37 and 83). The start of the situation (basic fact) should be seen as the first fact to be published. The second is the crystallization or consequences of the first fact, insofar as they are potentially price-sensitive. It may be advisable to communicate the achievement of individual milestones or the failure to achieve these in phases. If an issuer has been allowed to postpone the disclosure of a fact (see N 180 ff.), it must inform without delay if the potentially price-sensitive fact comes out through an information leak (see N 209 ff.).

109





23 | 54

Article/ para.


Principle of equal treatment

Art. 6 The public must be notified in order to ensure that all market participants have the same opportunity to become aware of potentially price-sensitive facts. Selective notification of market participants constitutes a violation of the principle of equal treatment.

The obligation to ensure the equal treatment of all market participants is set down in Art. 53 para. 3 LR. 110

Issuers must take due account of the aims of transparency and equal opportunities for all mar-ket participants in their handling of information. Listed companies have obligations not only toward their shareholders and employees, but also toward the public at large. The public has the right to be notified in accordance with the rules, i.e. quickly and adequately in terms of content. Market participants should be able to take note of potentially price-sensitive information under the same conditions and at the same time (Case no. 6 practice AhP; Decisions by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04], dated 7 January 2005 [ZUL/AHP/IV/04] and dated 23 March 2005 [ZUL/AHP/IV/05]).

111

Forwarding potentially price sensitive information to a restricted group of people is not allowed (selective information of market participants; see also Decisions by the Sanction Commission dated 19 November 2007 [SaKo/AHP/III/07] and dated 26 November 2009 [SaKo 2009-AHP II/09]).

112

Specifically, the groups listed below do not qualify as public within the meaning of Art. 53 para. 3 LR: 113

- Analysts (see Case no. 2 practice AhP; Decisions by the Disciplinary Commission dated 15 May 2002 [DK/AHP/I/02] and 18 June 2007 [DK/AHP/III/06]; Decision by the Sanction Commission dated 26 November 2009 [SaKo 2009-AHP-II/09]),

114

- Selected media (see Case no. 1 practice AhP, Case no. 3 practice AhP, Case no. 7 practice AhP; Decisios by the Disciplinary Commission dated 15 May 2002 [DK/AHP/I/02] and dated 24 March 2005 [DK/AHP/I/05]; Decisions by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/III/04] as well as dated 23 March 2005 [ZUL/AHP/I/05] and [ZUL/AHP/IV/05]; Decision by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07]),

115
























24 | 54

Article/ para.


- Staff (see Decision by the Disciplinary Commission dated 22 July 2002 [DK/AHP/II/02]; Decisions by the Sanction Commission dated 30 July 2007 [SaKo/AHP/I/07] and dated 31 January 2008 [SaKo-AHP-VI/07]),

116

- Shareholders (in particular major shareholders; see Decision by the Sanction Commission dated 18 December 2009 [SaKo 2009-MT III/09, SaKo 2009-MP I/09, SaKo 2009-AHP III/09]),

117

- Business partners and investors (Case no. 6 practice AhP; Decision by the Sanction Commission dated 26 November 2009 [SaKo 2009-AHP II/09]), or

118

- SIX Swiss Exchange (Decision by the Sanction Commission dated 25 March 2009 [SaKo-RLE II/08, SaKo-AHP I/08]).

119

In connection with the issuance of new securities and the rules of the US Securities and Exchange Commission (SEC) concerning the ban on informing US residents of offers that are not registered with the SEC (ban on general solicitation or advertising), the following must be borne in mind:

120

Ad hoc notices must be accessible to all market participants, regardless of their domicile. However, a disclaimer to the effect that media release is an ad hoc notice and does not represent an offer for the acquisition of securities is permissible. In contrast, restrictions on accessibility for certain market partici-pants (e.g. the use of an electronic gatepost [country filter]) or not sending ad hoc notices to certain market participants (push and pull services cf. Art. 7 f. DAH) constitute violations of the obligation to ensure equal treatment.

121

Ad hoc notices must in principle be provided to all prescribed recipients at the same time (see also Art. 11 DAH). This means that it is not permissible to send an ad hoc notice to a print medi-um earlier than to other market participants. Attaching an embargo to the notice does not change this. An embargo does not ensure the equal treatment of market participants (see Case no. 3 practice AhP; Decisions by the Committee of the Admission Board dated 1 November 2004 [ZUL/AHP/II/04] and [ZUL/AHP/III/04]; Decision by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07]).

122

All market participants must have the same opportunity to take note of a potentially price-sensitive fact (Decision by the Committee of the Admission Board dated 23 March 2005 [ZUL/AHP/IV/05]; see Art. 7 DAH on notice distribution).

123





















25 | 54

Article/ para.


If new and potentially price-sensitive facts are to be communicated in a media conference, analyst con-ference, conference call, web conference or general meeting held during trading hours, at least a sum-mary of the key information must be published in accordance with the rules on ad hoc publicity (see N 127).

124

If an issuer accidentally passes on potentially price-sensitive information, e.g. during an interview (such as a live interview or an interview conducted as part of a general meeting), the issuer must publish this information without delay in accordance with the rules on ad hoc publicity. The equal treatment of mar-ket participants must be ensured (equal opportunities, see N 111 above).

125

Ad hoc publicity is intended to serve the purpose of equal opportunities. It cannot guarantee equal re-sults for all market participants. The same data may be presented differently for different target audi-ences, e.g. analysts and financial journalists, provided that all audiences receive the same information, i.e. analysts can also receive the information intended for journalists and vice versa.

126



26 | 54

Article/ para.


Notice distribution

Art. 7 At the very least, ad hoc notices must be distributed to the following:

1. SIX Exchange Regulation (90 minutes ahead of time if published during trading hours)

2. at least two electronic information systems widely used by rofessional market participants (e.g. Bloomberg, Reuters, Telekurs);

3. at least two Swiss newspapers of national importance;

4. all interested parties upon request (Art. 8 below).

It is advisable to distribute ad hoc notices as broadly as possible. The DAH merely stipulates minimum requirements for the distribution of notices. The stated recipients must be informed cumulatively and at the same time (SIX Exchange Regulation at least 90 minutes earlier if the notice is published during critical trading hours; see Art. 11 f. DAH and Appendix 2 of this Commentary).

127

Trading times on SIX Swiss Exchange (see also Art. 11 DAH) can be found on the website of the Ex-change.

128

Ad hoc notices should be sent to the prescribed recipients at the same time wherever possible, alt-hough minimal delays in sending e-mails to different recipients due to technical factors are permissible (see Art. 6 and Art. 11 DAH). This also applies to anyone who has had themselves placed on the com-pany’s e-mail distribution list (push service, see Art. 8 DAH). However, a time discrepancy of several minutes is allowed. Ad hoc notices and financial reports (see N 63) should also be posted on an issu-er’s website at the same time as they are sent out (see Art. 9 DAH).

129

An issuer complies with its distribution obligations when it informs the stated recipients (see Art. 8 f. DAH). Art. 53 LR does not require ad hoc notices to be processed and forwarded by these re-cipients, since this is not something the issuer can influence.

130


http://www.six-swiss-exchange.com/shares/trading/trading_hours_en.html










27 | 54

Article/ para.


SIX Exchange Regulation does not publish the ad hoc notices it receives from issuers (Art. 13 DAH). 131

Electronic information systems: With regard to the requirement for sending ad hoc notices to at least two electronic information systems that are widely used by professional market participants (e.g. Bloomberg, Reuters and Telekurs), it must be borne in mind that a financial news agency (e.g. AWP) is not regarded as an electronic information system.

132

Swiss newspapers: Notices must be sent to two daily newspapers of national importance. The lan-guage in which a newspaper is published is immaterial. It is not sufficient to send a press release to a free newspaper or to the Swiss Official Gazette of Commerce (see Decision by the Sanction Commission dated 19 November 2007 [SaKo/AHP/III/07]).

133





28 | 54

Article/ para.


E-mail distribution

Art. 8 para. 1

1 The issuer must provide a

service on its Website that allows interested parties to receive, via e-mail distribution, free and timely notification of potentially price-sensitive facts (push system).

Issuers must set up a push system (Decision by the Disciplinary Commission dated 8 June 2006 [DK/RLE/VII/05]).

134

There is no need to distinguish between ad hoc notices and normal press releases in the e-mail distri-bution service. The term “ad hoc” is not compulsory, i.e. press releases do not have to be explicitly marked as ad hoc notices.

135

Issuers are free to commission third parties to provide a functionally equivalent system (e.g. XML, Atom or RSS), provided it can be accessed by all interested parties easily, free of charge and without proof of interest.

136

If, by way of exception, a media release is initially published in only one of the languages stipulated in Art. 14 DAH for reasons of extreme urgency, with further language versions only being published later, the first language version must be sent to all recipients of the push service to ensure equal treatment (Art. 53 para. 3 LR, Art. 6 DAH). With regard to issuers posting notices on their website as required by Art. 9 DAH, see N 143.

137

In such cases, the notice held in the first language must also be added to the directory containing the ad hoc notices in all language versions of the issuer’s website (see Art. 9 DAH). When the notice is subsequently published in other languages, the website can be updated accordingly. The languages are listed in Art. 14 DAH.

138

Art. 8 para. 2

2 The link for registering with

this e-mail distribution service must be communicated to SIX Exchange Regulation so it can publish the link on its Website.

SIX Exchange Regulation must be given the direct link to the e-mail distribution service on the issuer’s website. The same applies when the link is changed (regular reporting obligation; see Annexes to Cir-cular No. 1, Reporting Obligations regarding the Maintenance of Listing [CIR 1] and Additional Rules for the Listing of Exchange Traded Products [ARETP]).

139

http://www.six-exchange-regulation.com/download/admission/being_public/sanctions/publication/decision_dk_rle_08062006e.pdf







http://www.six-exchange-regulation.com/admission_manual/07_02-CIR1_en.pdf


http://www.six-exchange-regulation.com/admission_manual/03_04-ARETP/en/45035996550158987.html




29 | 54

Article/ para.


Failure to set up a push system or to provide SIX Exchange Regulation with the current path to the e-mail distribution service constitutes a violation of Art. 8 DAH (Decision by the Disciplinary Commission dated 8 June 2006 [DK/RLE/VII/05]).

140





30 | 54

Article/ para.


Issuer’s Website

Art. 9 para. 1

1 When a published ad hoc

notice is distributed, it must simultaneously be made avail-able on the issuer’s Website pursuant to Art. 7 and remain available there for a period of two years (pull system).

Issuers must set up a pull system (Decision by the Disciplinary Commission dated 8 June 2006 [DK/RLE/VII/05]).

141

There is no need for issuers to distinguish between ad hoc notices and normal press releases on their website (see also N 135). An archive for all types of release is sufficient to meet the requirements. However, if an issuer does make such a distinction, it must ensure that all media releases with poten-tially price-sensitive content appear in the list of ad hoc notices.

142

If the company’s website is available in more than one language, a complete list of ad hoc notices must be published in each language version of the website, since third parties cannot be expected to consult and compare all language versions. If an ad hoc notice is not published in all language versions of the website, the ad hoc notice must be posted on these versions in one of its published different languages (see Art. 14 DAH for the languages of ad hoc notices). If a media release is initially published in just one language for reasons of urgency, this version must be posted to the directory of ad hoc notices in all language versions. When the notice is subsequently published in other languages, the website can be updated accordingly. For further information on the push system under Art. 8 DAH in this case, see N 134 f.

143

Art. 9 para. 2

2 The path to the directory

containing ad hoc notices must be communicated to SIX Exchange Regulation so it can publish the path on its Web-site.

SIX Exchange Regulation must be given the direct link to the page containing an issuer’s ad hoc notic-es and informed every time the link is changed (regular reporting obligation, see CIR 1 and Annex to ARETP). Failure to set up a pull system or provide SIX Exchange Regulation with the current path to the directory of ad hoc notices constitutes a violation of Art. 9 DAH (Decision by the Dis-ciplinary Commission dated 8 June 2006 [DK/RLE/VII/05]; Decision by the Committee of the Admission Board dated 23 January 2007 [ZUL/AHP/IV/06]).

144

All ad hoc notices must be posted to the directory required under Art. 9 DAH. It is not sufficient to post them somewhere on the issuer’s website (Decision by the Committee of the Admission Board dated 23 January 2007 [ZUL/AHP/IV/06]; Decision by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07]).

145















31 | 54

Article/ para.


Responsibility

Art. 10 para. 1

1 The issuer may decide at its

own discretion whether to fulfil ist disclosure obligations itself or instruct a third party to do so.

If an issuer has commissioned a third party to distribute notices, it nevertheless bears responsibility for the correct performance of its ad hoc publicity duties towards SIX Exchange Regulation. The issuer is also liable for organizational faults on the part of the third party if they lead to a violation of the rules on ad hoc publicity. In addition, a listed parent company cannot transfer responsibility for compliance with the rules on ad hoc publicity to a subsidiary (Decisions by the Sanction Commis-sion dated 16 April 2009 [SaKo 2009-AHP/MP-II/08] and dated 15 December 2009 [SaKo 2009-AHP I/09]; see also Decision by the Sanction Commission dated 19 November 2007 [SaKo/AHP/III/07]). See also N 99 (organizational negligence).

146

Art. 10 para. 2

2 In either case, the issuer is

responsible for the proper fulfilment of its obligations. In particular, it must ensure sim-ultaneous distribution to all addressees.

When technical problems or other unexpected events occur, the issuer is still responsible for ensuring that notices are distributed correctly (see Case no. 8 practice AhP).

147

In such cases, it is advisable to contact SIX Exchange Regulation immediately (see Appendix 1 of this Commentary). SIX Exchange Regulation will discuss with the issuer how to proceed. If necessary, tra-ding will be temporarily suspended.

148








32 | 54

Article/ para.


Critical trading hours

Art. 11 Whenever possible, a notice containing potentially price-sensitive information should be published 90 minutes be-fore the start of trading or after the close of trading.

In order to give the market enough time to assess and process potentially price-sensitive information correctly, it is advisable to refrain from publishing ad hoc notices during critical trading hours (7.30 am to 5.40 pm) wherever possible.

149

The trading hours on the SIX Swiss Exchange can be consulted (bonds, warrants etc.). See also Art. 12 DAH.

150

7.00 am 8.00 am 9.00 am 5.00 pm 6.00 pm

Trading hours for shares:

9.00 am – 5.40 pm

Advance information to SER (90 minutes):

7.30 am – 5.40 pm

151

If an ad hoc notice is published during critical trading hours, SIX Swiss Exchange may tempo-rarily suspend trading (see Art. 18 ff. DAH; see also Case no. 3 practice AhP; Decisions by the Com-mittee of the Admission Board dated 7 January 2005 [ZUL/AHP/IV/04] and dated 23 March 2005 [ZUL/AHP/I/05]; Decision by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07]; see also Appendix 2 of this Commentary).

152

http://www.six-swiss-exchange.com/shares/trading/trading_hours_en.html









33 | 54

Article/ para.


Simultaneous notification

Art. 12 para. 1

1 The notice must be forward-

ed to SIX Exchange Regula-tion at the latest when it is made available to the public.

Issuers are free to go beyond the minimum disclosure requirements stipulated in Art. 53 LR and in the DAH and publish notices that are not potentially price-sensitive. Such notices may be published at any time. In these cases, SIX Exchange Regulation does not have to be informed beforehand or even at the same time. However, if such a notice proves – contrary to the issuer’s expectations – to be potentially price-sensitive, failure to publish it in the correct manner may constitute a violation of the rules on ad hoc publicity.

153

Art. 12 para. 2

2 If, in exceptional cases, pub-

lication during trading hours or less than 90 minutes before the start of trading is unavoid-able, the notice intended for publication must be sent to SIX Exchange Regulation at least 90 minutes prior to the scheduled time of publication.

If an ad hoc notice is published during trading hours (9.00 am to 5.40 pm), SIX Exchange Regu-lation must be informed no later than 90 minutes before the planned publication (this is known as the “90-minutes rule”). This time is needed to decide whether trading should be suspended (on the suspension of trading, see Art. 18 ff. DAH; see also Case no. 3 practice AhP and Decision by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07]).

154

If the notice is to be published between 7.30 am and 9.00 am, SIX Exchange Regulation must receive the draft by 7.30 am at the latest. It is also advisable to inform SIX Exchange Regulation by telephone (see Appendix 1 of this Commentary for the contact details).

155

If the 90-minutes rule is applied, SIX Exchange Regulation must be contacted by telephone (+41 58 399 55 05). At the same time, the planned ad hoc notice must be e-mailed to [email protected]. The e-mail should contain the intended time of publication as well as statements on the potential price-sensitivity of the information to be published (including brief reasons) and on the question of suspending trading.

156

Once it has assessed the situation, SIX Exchange Regulation will inform the issuer as to whether trad-ing will be suspended. It will also tell the issuer when the planned notice should be published.

157

The issuer should contact SIX Exchange Regulation at the earliest possible stage to discuss how to proceed.

158

Appendix 1 of this Commentary contains a complete list of SIX Exchange Regulation addresses and contacts.

159





http://www.six-exchange-regulation.com/obligations/contacts_en.html

mailto:[email protected]



34 | 54

Article/ para.


Failure to observe the 90-minutes rule when publishing potentially price-sensitive information during critical trading hours was sanctioned as a violation of the rules on ad hoc publicity in the following cases: Case no. 7 practice AhP, Case no. 8 practice AhP; Decision by the Disciplinary Commission dated 24 March 2005 [DK/AHP/I/05]; Decisions by the Committee of the Admission Board dated 7 January 2005 [ZUL/AHP/IV/04], dated 23 March 2005 [ZUL/AHP/I/05] and [ZUL/AHP/IV/05] and dated 23 January 2007 [ZUL/AHP/IV/06]; Decisions by the Sanction Commission dated 30 July 2007 [SaKo/AHP/II/07], dated 19 November 2007 [SaKo/AHP/III/07] and dated 16 April 2009 [SaKo 2009-AHP/MP-II/08].

160














35 | 54

Article/ para.


Role of SIX Exchange Regulation

Art. 13 SIX Exchange Regulation uses the notice exclusively for purposes of monitoring the market.

Issuers’ notices are not forwarded by SIX Exchange Regulation. Furthermore, SIX Exchange Regulation does not verify their content or publish ad hoc notices on its website.

161



36 | 54

Article/ para.


Languages

Art. 14 The ad hoc notice must be written in at least one of the following languages: German, French or English.

If ad hoc notices are published in a various languages, the content of each language version must be the same (see Art. 15 DAH).

162

Due attention must be paid to the principle of equal treatment (Art. 53 para. 3 LR, Art. 6 DAH). If an ad hoc notice is published in several languages, the different language versions must be sent out at the same time (Art. 7 f. DAH). If the issuer’s website is available in several languages, the various language versions of ad hoc notices must be posted at the same time (Art. 9 DAH). If, by way of exception due to urgency, an issuer publishes an ad hoc notice first in one language and later in other languages, the language version sent out first must be sent to all ad hoc recipients (Art. 7 f. DAH) and be posted to all language versions of the issuer’s website. The issuer can post the further language versions of the ad hoc notice on the corresponding versions of its website later. See also N 138 and 143.

163

Besides German, French and English ad hoc notices may also be published in other languages. 164









37 | 54

Article/ para.


IV. Content of notices

Requirements

Art. 15 para. 1

1 The content of notices must

be formulated in such a way that the average market participant can form an opinion of the extent to which the content is price-sensitive.

They must be worded such that the average market participant can discern their price-sensitivity. 165

Art. 60 LR provides for sanctions against any failure to disclose potentially price-sensitive facts or any publication of false or misleading ad hoc notices (see N 177).

166

Art. 15 para. 2

2 The information must be

factual, clear and complete.

Notices should explain the main facts and background in clear and easily understandable language. Potentially price-sensitive facts must appear in a prominent position (principle of clarity, veracity and completeness of ad hoc notices).

167

The principle of veracity, clarity and completeness of ad hoc notices is also violated if the notice omits key potentially price-sensitive facts (Decision by the Sanction Commission dated 25 March 2009 [SaKo-RLE II/08, SaKo-AHP I/08]).

168

If an issuer informs in stages, each ad hoc notice must be clear, true and complete in its own right. The question as to whether an ad hoc notice is sufficiently clear, true and complete depends on the extent of the issuer’s knowledge at the time the notice is published.

169

When a profit warning is published, care must be taken to ensure that it is not too general in its wording. In one specific case, statements to the effect that the markets were at the time highly volatile and that the turmoil could persist for the entire quarter and might potentially result in sharply lower trading income were considered too vague (see Decision by the Sanction Commis-sion dated 30 November 2010 [SaKo 2010-AHP-II/10, SaKo-CG-IV/10]). Notices should be worded such that investors can draw specific conclusions regarding the approximate extent to which the prior guidance will not be met.

170






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Article/ para.


If an ad hoc notice does not contain all the new and potentially price-sensitive information that can be found in another document (e.g. a financial report or presentation), clarity and completeness must be ensured either by publishing the said document in a separate ad hoc notice or by attaching the full doc-ument as a PDF file to the ad hoc notice. The ad hoc notice may also refer explicitly to the fact that the full document can be found on the issuer’s website (see Decision by the Sanction Commission dated 25 March 2009 [SaKo-RLE II/08, SaKo-AHP I/08]). In such cases, either a link to the document on the website or the corresponding path should be given. The reference must make clear how the document in question can be found (see Decision by the Sanction Commission dated 26 November 2009 [SaKo 2009-AHP II/09]).

171

Contractual agreements do not in principle release an issuer from its obligation to observe the principle of veracity, clarity and completeness of ad hoc notices (see N 12).

172

Every notice must make clear which issuer it concerns and from whom it originates (person responsible at the issuer, including telephone number and e-mail address for enquiries). It is advisable to include the issuer’s ticker symbol and Swiss security number (especially if the securities are traded on more than one exchange). Apart from the above requirements, issuers are free to choose the layout of their notices.

173

In the event of a company acquisition or the spin-off of a division, the facts must be presented such that the average market participant can form a picture of the impact the takeover or spin-off will have on the issuer’s business operations. If the purchase or sale price is not mentioned, other details must be given (e.g. revenues or headcount, area of activity, market position and implications for the issuer’s business strategy). The content of the notice must be such that the average market participant can discern why the transaction is potentially price-sensitive for the issuer. Simply naming the company, its domicile and its area of activity is not sufficient for this purpose.

174

Since the issuer is obliged to shape the ad hoc notice in such a way that it is clear from the notice why is potentially price-sensitive, the not disclosing of the purchase price because of a corresponding con-tractual agreement can be problematic. In this context it must be noted that due to the applicable finan-cial reporting standard the acquirer might be at least obliged to disclose the price in the financial report. Thus, in such a case there are as a rule no convincing reasons apparent why the price cannot be stated in the ad hoc notice.

175





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Article/ para.


Decisions where the content of ad hoc notices was not deemed to comply with the rules on true, clear and complete ad hoc notices: Decisions by the Sanction Commission dated 13 November 2007 (SaKo/AHP/IV/07), dated 19 November 2007 (SaKo/AHP/III/07), dated 25 March 2009 (SaKo-RLE II/08, SaKo-AHP I/08) and dated 30 November 2010 (SaKo 2010-AHP-II/10, SaKo 2010-CG-IV/10).

176

Art. 15 para. 3

3 Notices that do not fulfil

these requirements must be corrected immediately by the issuer.

Where an issuer publishes information that is untrue, incomplete or later found to be false, this must be corrected immediately in a further ad hoc notice.

177

If an annual or interim report having already been published has to be amended and the amendment is potentially price-sensitive, the report must be published a second time in accordance with the rules on ad hoc publicity. In this case, the new version of the report must be marked “Corrigendum” or distin-guished in another clear way.

178








40 | 54

Article/ para.


V. Postponement of disclosure

Principle

Art. 16 para. 1

1 Postponement of disclosure

occurs when all the conditions for publishing a potentially price-sensitive fact are fulfilled pursuant to Art. 53 para. 1 LR, but the issuer does not yet publish it for justifiable rea-sons.

With regard to potentially price-sensitive facts, refer to the provisions of Art. 3 DAH (see N 23 ff.). 179

Art. 16 para. 2

2 Such a postponement of

disclosure is subject to fulfil-ment of the requirements of Art. 54 LR.

According to Art. 54 LR (postponement of disclosure), an ad hoc notice may be postponed if the

following conditions are all met: 180

1. The fact is based on a plan or decision from the issuer; 181

2. The dissemination of the fact might prejudice the legitimate interests of the issuer; 182

3. The issuer ensures that the fact remains fully confidential. 183

These conditions must all be met for the entire duration of the postponement. 184

Postponement is not permissible when an extraordinary event occurs that does not arise from the issuer’s own plans or decisions but is in fact contrary to its plans. This applies even when disclosing the fact might prejudice the legitimate interests of the issuer (Case no. 2 practice AhP).

185

An issuer’s financial figures are not based on a plan or decision made by the company. A postpone-ment of disclosure regarding financial figures is therefore as a rule not possible (however, see N 197 below for the case of financial restructuring).

186







41 | 54

Article/ para.


It is also not possible to postpone disclosure, therefore, in the case of a profit collapse or a profit warning. The same applies when a member of the board of directors steps down (see Case no. 2 practice AhP, Case no. 4 practice AhP; Sanction Decision by SIX Exchange Regulation dated 22 December 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]).

187

Issuers must weigh up their interests. It is only permissible to postpone the disclosure of infor-mation when the company’s legitimate interest in doing so outweighs market participants’ inter-est in obtaining the information (Sanction Decision by SIX Exchange Regulation dated 22 December 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]).

188

Restructuring may represent a legitimate interest in postponing disclosure (Case no. 5 practice AhP).

189

If an issuer’s overriding legitimate interest is agreed and disclosure postponed, the issuer must contin-ually check whether its interests still take precedence. If this is no longer the case, the issuer must pub-lish the postponed ad hoc notice.

190

The fact that an issuer has announced in advance that it will publish an ad hoc notice on a spe-cific date is not in principle sufficient to justify postponing the publication of a potentially price-sensitive fact (Case no. 4 practice AhP).

191

An issuer’s wish to announce its CFO’s departure only at a later date together with the appoint-ment of his successor does not constitute an overriding legitimate interest in postponing dis-closure (Sanction Decision by SIX Exchange Regulation dated 22 December 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]; on changes in key staff, see N 57, 88).

192

Ensuring confidentiality: If an issuer legitimately makes use of a postponement of disclosure, it must ensure that the fact remains fully confidential.

193













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Article/ para.


The minimum measures it must take are as follows:

- restricting the number of people entrusted with the information to an absolute minimum (see also N 211 f.);

- restricting and securing access to the information;

requesting hand-signed confidentiality agreements from all internal and external people entrusted with the information and keeping a corresponding list of insiders. Extracts from meeting minutes have the same value as a confidentiality agreement if they identify the meeting participants and state that they were informed about the confidentiality of the fact. Issuers must store these confidentiality agreements and extracts from meeting minutes centrally in the same place.

194

If two people accidentally receive confidential and potentially price-sensitive information about an issuer and the issuer can secure their agreement to maintain its confidentiality quickly after the accident, the issuer can assume that confidentiality is still ensured in accordance with Art. 54 LR (see Decision by the Disciplinary Commission dated 29 June 2005 [DK/AHP/II/05]).

195

In the case of potentially price-sensitive facts disclosed at a general meeting, it is clear that con-fidentiality is not ensured (Sanction Decision by SIX Exchange Regulation dated 22 December 2010 [SER 2010-AHP-I/10, SER 2010-MP-I/10]).

196

Postponing disclosure during financial restructuring: 197

A special problem arises when an issuer is in financial difficulty. The following procedure is recom-mended:

198

1. Identifying the need for financial restructuring: 199

The fact that a company has identified a need for financial restructuring is in principle potentially price-sensitive. A company in need of financial restructuring is in an exceptional situation. To take ac-count of this special problem, postponing disclosure seems in principle to be permissible, even if the potentially price-sensitive fact that financial restructuring is needed does not in itself stem from a plan or decision on the part of the issuer (see Art. 54 para. 1.1 LR and N 181). Since postponing disclosure is particularly sensitive here, it is advisable to contact SIX Exchange Regulation at the earliest possible stage.

200







43 | 54

Article/ para.


The Admission Board decided, by way of an exception, that postponing disclosure may be of great importance to an issuer in a phase of financial restructuring (Decision by the Committee of the Admission Board dated 4 September 2006 [ZUL/AHP/II/06]).

201

2. Drafting a financial restructuring plan: 202

The fact that a financial restructuring plan is being drawn up is (like the fact that a need for financial restructuring has been identified) in principle to be regarded as potentially price-sensitive. However, postponing the ad hoc notice may be beneficial to the company’s recovery: If an issuer that has drawn up a financial restructuring plan were to be forced to disclose either the plan itself or the financial trou-bles that made such plan necessary, there would be a risk that the financial restructuring efforts would become impossible or at least significantly more difficult by a disclosure of the financial problems. Here, as ever, the permissibility of postponing disclosure ceases to apply immediately when an information leak occurs, as a result of which confidentiality can no longer be ensured (see Art. 17 DAH).

203

3. Financial restructuring phase: 204

During its financial restructuring, an issuer must regularly review the prospects of its efforts succeeding on the operational and financial levels. Only a financial restructuring plan that is likely to succeed justi-fies postponing disclosure in the sense of weighing up the public interest against that of the issuer (see N 188).

205

Financial restructuring conducted entirely in secret is scarcely conceivable. The more precisely the public is informed about the measures taken at the appropriate time, the more likely those measures are to succeed.

206

According to a decision made by the Committee of the Admission Board, an issuer was allowed by way of an exception to postpone the publication of the fact that a key business partner was in need of financial restructuring (Decision by the Committee of the Admission Board dated 4 September 2006 [ZUL/AHP/II/06]).

207

See the diagram in Appendix 4 of this Commentary on the permissibility of postponing disclosure under Art. 54 LR.

208







44 | 54

Article/ para.


Information leaks

Art. 17 para. 1

1 Information leaks (“leaks”)

are situations in which, against the issuer’s wishes, the confidentiality of a po-tentially price-sensitive fact can no longer be assured.

If, during the postponement of disclosure, reports appear in the media on facts that largely match the in-formation that is the subject of the postponed disclosure, it must mostly be assumed that this is the result of a leak. This is valid in particular if details are reported that match with the secret information. Then such is no longer a mere rumour. An ad hoc notice must therefore be published immediately. This also applies if the company believes that there is no leak, since it is often impossible to determine for certain whether there has been a leak and, if so, where the leak has occurred.

209

If a director shares potentially price-sensitive information being confidential until then with a news-paper, or if such information is picked up by an electronic information system, a leak has occurred. The company must thus publish the information in an ad hoc notice immediately (see Decision by the Sanction Commission dated 19 November 2007 [SaKo/AHP/III/07]; see also Art. 17 para. 2 DAH).

210

The greater the number of people who have knowledge of a potentially price-sensitive fact and the longer the postponement, the greater the danger of a leak (see Decision by the Committee of the Ad-mission Board dated 1 November 2004 [ZUL/AHP/III/04] and Decision by the Disciplinary Commission dat-ed 29 June 2005 [DK/AHP/II/05]).

211

It is therefore advisable to entrust the information only to those who absolutely need it in order to perform their tasks (“need to know” principle). This must be decided separately in each individual case. In practice, experience has shown that even making people sign confidentiality agreements does not always prevent leaks (see N 194).

212

Art. 17 para. 2

2 If a leak occurs, the fact

must be disclosed immedi-ately, even if publication was scheduled for later. If a leak occurs during trad-ing hours, SIX Exchange Regulation must be notified immediately by phone.

Issuers must take precautions to ensure that they can release information immediately when a leak occurs. It is advisable in the case of legitimate postponement of disclosure to keep a regularly up-dated notice on hand so that the obligation to disclose the potentially price-sensitive facts can be met as quickly as possible. Issuers that make no preparations for immediately publishing an ad hoc notice when delaying disclosure are as a rule unable to publish the notice immediately as required (Case no. 5 practice AhP; Decisions by the Disciplinary Commission dated 30 July 2004 [DK/AHP/I/04] and dated 29 June 2005 [DK/AHP/II/05]; Decision by the Committee of the Admission Board dated 4 September 2006 [ZUL/AHP/II/06]).

213











45 | 54

Article/ para.


In case of identifying the leak during critical trading hours (7.30 am until 5.40 pm) SIX Exchange Regulation must be informed immediately by telephone in each case (see Appendix 1 of this Commentary), regardless of whether the issuer has put measures in place to prevent the leak from spreading. Issuers must provide information by telephone as soon as signs of a leak are identified. This enables SIX Exchange Regulation to decide whether trading is to be suspended (Art. 18 ff. DAH; see also N 154).

214




46 | 54

Article/ para.


VI. Suspension of trading

Purpose

Art. 18 Suspension of trading may be imposed in exceptional circumstances where other-wise orderly and fair trading cannot be guaranteed.

Suspending trading serves to ensure fair and orderly trading. Trading is suspended in particular when SIX Swiss Exchange considers that market participants need time to process relatively complex or detailed information.

215

Companies that wish to avoid a suspension of trading by all means are advised to publish ad hoc notices whenever possible outside critical trading hours (7.30 am to 5.40 pm; Art. 11 DAH; see also N 154 f.).

216

To ensure that SIX Exchange Regulation can contact the issuer’s relevant staff without delay in the event of a possible suspension of trading, it is essential for the company to comply with its regular reporting obliga-tions under CIR 1 and the Annex to the ARETP (reporting obligations regarding contacts).

217

SIX Exchange Regulation does not publish media releases concerning the reasons behind a suspension of trading, nor does it provide information on such reasons to third parties such as journalists or analysts. Companies are of course free to inform the public themselves as to why trading has been suspended.

218






47 | 54

Article/ para.


Upon request by the issuer

Art. 19 para. 1

1 If an issuer considers the

suspension of trading to be necessary, it must apply to SIX Exchange Regulation, stating its reasons, as early as possible and no later than 90 minutes before the intended suspension.

The relevant SIX Exchange Regulation address can be found in Appendix 1 of this Commentary (tele-phone: +41 58 399 55 05; e-mail: [email protected]).

219

Art. 19 para. 2

2 SIX Exchange Regulation

decides at its own discretion on whether or not suspension of trading should be granted and, if so, how long it should last.

220

Art. 19 para. 3

3 In the event that SIX

Exchange Regulation denies suspension of trading, the issuer must disclose the price-sensitive fact at least 90 minutes before the start of trading or after the close of trading.

221




48 | 54

Article/ para.


Without request by the issuer

Art. 20 SIX Exchange Regulation may suspend trading at its own discretion and without request by the issuer if it considers this step necessary to maintaining orderly trading.

222



49 | 54

Article/ para.


VII. Sanctions

Imposing sanctions

Art. 21 para. 1

1 SIX Exchange Regulation

may impose sanctions if the issuer fails to comply with the provisions of the Listing Rules and this Di-rective.

Legally valid sanction decisions and sanction notices are posted on the SIX Exchange Regulation website in anonymized form.

223

Art. 21 para. 2

2 Applicable in this regard

are the corresponding provisions of Chapter V LR.

224

http://www.six-exchange-regulation.com/enforcement/sanction_decisions/adhoc_publicity_en.html



50 | 54

Article/ para.


VIII. Final provision

Entry into force

Art. 22

This Directive shall enter into force on 1 July 2009 and replaces the Directive on Ad hoc Publicity of 29 March 2006.

225



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Appendix 1

Contact

Address:

SIX Exchange Regulation AG

Hardturmstrasse 201

P.O. Box

CH-8021 Zurich

Telephone: +41 58 399 55 05

E-mail: [email protected]

Website: https://www.ser-ag.com/en/home.html


https://www.ser-ag.com/en/home.html



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Appendix 2

Publication of ad hoc notices: timing

Publication between 5.40 pm and 7.30 am

Publication between 5.40 pm and 7.30 am



53 | 54

Appendix 3

Potentially price-sensitive fact



54 | 54

Appendix 4

Postponement of disclosure

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