Filing and documentary requirements

General filing requirements

Give details of any filing requirements for public offerings of debt securities. Outline any requirements for debt securities that are not applicable to offerings of other securities.

In contrast to other jurisdictions (eg, the US and the EU/EEA), in principle, there is no requirement for a prospectus to be filed with or pre-approved by a supervisory body (ie, FINMA or another regulatory authority) in connection with the offering of debt securities in, from or into Switzerland. This constitutes a major advantage of Swiss securities offerings with respect to time to market. If the securities are to be listed on SIX, the formal process described in more detail below becomes applicable.

Further, special rules and regulations, which are not described in this context, apply for the issuance of certain regulatory capital instruments, equity offerings, units or shares of collective investment schemes and structured products (see question 15 for a very brief description concerning structured products).

Prospectus requirements

In a public offering of debt securities, must the issuer produce a prospectus or similar documentation? What information must it contain?

Pursuant to article 1156 CO, bonds and notes may only be offered publicly on the basis of a prospectus. See question 2 regarding registration and filing requirements.

The requirements regarding the content of such prospectus depend on whether the securities are intended to be listed on SIX.

Listed public offerings

The SIX prospectus requirements are similar to the Prospectus Directive, but less extensive and more flexible. The content of the listing prospectus of debt securities is governed by SIX-Scheme E (Bonds). In particular, the listing prospectus must contain, inter alia, information about the issuer (and, where applicable, the guarantor), description of the securities, risk factors, selling restrictions, No-MAC statement, information on special features of the security (such as convertible bonds, exchangeable securities, or warrant bonds), security and ISIN number, a responsibility statement, among others. In the case of an ABS, a transaction summary and overview must be included. The listing prospectus may be provided in one of the following forms:

  • a complete listing prospectus for each individual issue (standalone prospectus); or
  • a complete issuing prospectus for each individual issue consisting of an issuance programme that has been registered with SIX and final terms (Final Terms) for each bond or note issued under the programme (SIX-registered issuance programme).

Apart from the listing prospectus, the following main documents are required for a listing of debt securities on SIX:

  • issuer declaration;
  • guarantor declaration (if applicable);
  • declaration of consent;
  • Swiss wrapper; and
  • the final terms.

If a foreign-based prospectus does not fulfil the SIX requirements, in addition to the standalone prospectus or issuance programme, in the case of a SIX-registered issuance programme, a Swiss wrapper or country supplement that provides missing information that applies specifically to Switzerland must be submitted to SIX. Special provisions apply for bonds previously listed abroad, in particular, certain information marked in SIX-Scheme E may be omitted (article 31 et seq ARB).

Moreover, for permanent global certificates, a copy of the certificate must be submitted (article 4 paragraph 1 point 4 DPDS). In the case of book-entry securities - if not required by the articles of association of the issuer or the general terms and conditions of the issuance - a description of the means by which those having rights may obtain proof of their holding must be submitted by the issuer. In the case of book-entry securities based on foreign law, the relevant legal text and its translation into German, French, Italian or English must also be submitted (article 4 paragraph 1 point 5 DPDS).

Unlisted public offerings

In the case of unlisted public debt offerings, very few requirements exist. Namely, a prospectus according to article 1156 paragraph 1 and 2 CO (and by way of reference, article 652a CO) must be published. It must contain the following information on the issuer and guarantor:

  • content of commercial register entry;
  • share capital;
  • provisions of the articles of association relating to any authorised or contingent capital increase;
  • the number of dividend rights certificates and the nature of the associated rights;
  • the most recent annual accounts and consolidated accounts with audit report and, if more than nine months has elapsed since the accounting cut-off date, the interim accounts;
  • the dividends distributed in the past five years or since the company was established; and
  • the date of the resolution concerning the issue of new debt securities.

Private placements

For private debt offerings of foreign debt in Switzerland, the content requirements are based on foreign rules and regulations. However, Swiss market practice should also be considered, in particular, with respect to Swiss selling restrictions. For Swiss private debt offerings, the content of the prospectus should follow Swiss market practice.

Documentation

Describe the drafting process for the offering document.

For straight debt securities (including such that will be listed on SIX), the drafting process of the offering document is comparably straightforward and guided by the content requirements set forth in the LR and the CO for unlisted public offerings of debt securities (see question 4). Key topics are the availability of financials (typically incorporated by way of reference), the No-MAC and responsibility statements as required by the LR, tax disclosure, selling restrictions, and risk factors. In addition, when the prospectus is filed with SIX, a SIX-Scheme E check form (that evidences to SIX that all required information has been included) must be submitted.

The offering documents for private placements are drafted according to Swiss market standard. There are no clear legal thresholds that are decisive to help determine whether to make certain disclosure, but the prospectus must not contain any false, misleading or incomplete statements.

Which key documents govern the terms and conditions of the debt securities? Who are the parties to such documents? How can such documents be accessed?

The issuance of Swiss law-governed debt securities is normally dealt with in a bond or note purchase agreement concluded by the issuer and the lead manager(s). The terms and conditions of debt securities are also set out in the prospectus. In the case of an issuance programme that allows for the issuance of multiple products, the final terms are provided in the form of a separate document for each individual product that constitutes the offering documentation, together with the issuance programme.

No public register or authority exists where such documents can be accessed. They are made available by the issuer, lead manager or global coordinator of the securities issue, either on their web page or upon request in printed form.

Does offering documentation require approval before publication? In what forms should it be available?

There is no general requirement for a prospectus to be filed with, or pre-approved by, a supervisory body in connection with the offering of debt securities in or into Switzerland. In the case of the issuance of debt instruments by Swiss banks and Swiss insurance companies that shall qualify as regulatory capital, pre-approval of FINMA is usually obtained in order to ensure that FINMA will acknowledge such instruments for regulatory capital purposes.

In the case of a listing on SIX, a listing application to SIX is required and SIX Exchange Regulation (SER) examines the compliance of the listing prospectus with SIX regulations based on the listing application. In the case of a successful application to provisional trading, the physical listing application (including the prospectus) must be submitted to SIX within two months of the first trading day, and SIX will thereafter examine the full documentation (see question 2).

If the debt securities are to be listed on SIX, a listing prospectus is required and must be published in one of the following forms:

  1. printed in at least one newspaper with a national distribution (not relevant in practice);
  2. provided free of charge in printed form at the issuer’s head office and at those financial institutions that are placing or selling the securities; or
  3. electronic publication on the issuer’s website and potentially also on the websites of those financial institutions that are placing or selling the securities.

A printed copy must be provided to investors free of charge on request. Exemptions from the duty to produce a listing prospectus duty apply if certain conditions are met (article 33 LR). With respect to unlisted debt securities, no regulatory requirements similar to those applicable in the EU exist. Nevertheless, from a civil law perspective, options (ii) and (iii) are recommended.

Authorisation

Are public offerings of debt securities subject to review and authorisation? What is the time frame for approval? What are the restrictions imposed, if any, on the issuer and the underwriters during the review process?

Unless listed, public offerings of debt securities are, in principle, not subject to review and authorisation (see questions 2 and 7).

On what grounds may the regulators refuse to approve a public offering of securities?

In general, the regulators may not refuse a public offering of debt securities, as such offerings are not subject to regulatory approval (see question 7). However, in the case of SIX listed debt securities, SIX may not approve the offering documentation if it does not fulfil the formal listing requirements. Further, FINMA has the authority to impose restrictions on Swiss-regulated financial institutions (eg, banks and insurance companies) in connection with the assumption of additional debt and has certain discretion in connection with the recognition of banking or insurance regulatory capital.

How do the rules differ for public and private offerings of debt securities? What types of exemptions from registration are available?

Public offerings are subject to article 1156 CO in connection with article 652a CO and, in the case of listed debt securities, to SIX regulations. Private offerings are, in principle, unregulated. In Switzerland, no registration with a supervisory authority is required and, therefore, no safe harbour provisions exist.

Owing to a lack of clear guidance by Swiss courts, the meaning of the term ‘public offering’ for purposes of the CO has been, and continues to be, the subject of a legal debate, and there is no bright line test for determining whether an offering is public. Each offering should therefore be evaluated on a case-by-case basis, weighing all relevant facts (eg, marketing, number and type of investors and the nature of any on-selling).

With respect to cross-border offerings by foreign issuers into (but without listing in) Switzerland, Credit Suisse, UBS and Zürcher Kantonalbank together with Niederer Kraft & Frey Ltd and other major Swiss law firms have issued a position paper, which, inter alia, discussed the delimitation of the terms public and non-public offerings in Switzerland and related practical aspects (see www.caplaw.ch/wp-content/uploads/2013/03/CapLaw_03_11.pdf).

Offering process

Describe the public offering process for debt securities. How does the private offering process differ?

Listed public offerings

New issuers (ie, issuers or guarantors who have not listed any type of securities on SIX for the past three years) need to be pre-approved by SIX. The new issuer’s ‘recognised representative’ (which may be a bank, law firm, auditing or advisory firm) must submit a written listing application (including a confirmation that the issuer fulfils all the requirements relating to the listing and maintaining of the listing (issuer declaration)). SIX will, in principle, make a decision regarding the admission of a new issuer to provisional trading within three trading days after receipt of all the required documents. If exceptions to the requirements for new issuers are requested, the decision will be made within 20 trading days.

Debt securities intended for listing may be admitted provisionally to trading on SIX (this is not to be confused with grey market trading). The recognised representative must submit the relevant application electronically through the automated web application IBL. The application must contain a description of the securities, provide assurance that all the listing requirements are fulfilled and confirm that a listing application (if applicable, including the prospectus) will follow.

Key steps in the listing process are detailed below.

Preparing and

fulfilling listing

requirements

Listing

Post-listing

requirements

  • Selection of advisers
  • Due diligence
  • Verification of listing requirements
  • Listing structure setup
  • Pre-verification application
  • Preparation of listing prospectus and listing documentation
  • Application for provisional admission to trading
  • Listing application
  • Financial reporting
  • Ad hoc publicity
  • Other reporting requirements

Provisional trading can begin within three trading days (in some cases just one trading day) following receipt of the electronic application. The issuer then has two months from the start of trading to file, through its recognised representative, the listing application together with the required declarations and the listing prospectus. The listing application must contain a short description of the transaction, the formal application to list the securities on SIX, and a reference to the required supporting documents. The decision will generally be issued within a maximum of 20 trading days.

The listing process on SIX is subject to an indicative timeline that can be found at www.six-group.com/exchanges/download/about/div_pub/bond_listing_guide_en.pdf.

Unlisted public offerings

Debt securities not listed or admitted to trading, but offered to the public, must comply with the provisions set out in articles 1156 et sequens CO. In particular, they can only be offered based on an issue prospectus.

Private placements

A non-public offering of debt securities in or into Switzerland, which are not listed on any Swiss exchange or any other regulated market in Switzerland, is not subject to any requirements under the CO. The drafting of the offering documentation (if any) is determined by Swiss market standard (see question 4) and prepared to minimise potential civil liability issues.

However, special rules apply for private placements with clients of a Swiss bank of debt securities of non-Swiss issuers that are denominated in Swiss francs and are governed by Swiss law. The Swiss Bankers Association’s Guidelines Regarding Notes from Foreign Issuers provide for a prospectus requirement if debt securities of non-Swiss issuers that are denominated in Swiss francs and governed by Swiss law are directly placed with the clients of Swiss banks involved in the issuance.

Closing documents

What are the usual closing documents that the underwriters or the initial purchasers require in public and private offerings of debt securities from the issuer or third parties?

The usual closing documents are the prospectus, the purchase agreement, the agreement among underwriters, the agency agreement, the terms and conditions of the debt securities, legal opinions, comfort letters, subscription forms and the securities register or the global certificate.

Listing fees

What are the typical fees for listing debt securities on the principal exchanges?

The typical charges for listing bonds on SIX are the following:

General

Basic charge

Processing of a listing application

2,000 Swiss francs

Variable charge

Listing of new bonds or the increase of an existing listed bond issue

10 Swiss francs per million Swiss francs nominal value

Standalone prospectuses

Additional charge

Examination of the listing prospectus (standalone prospectus)

5,000 Swiss francs

SIX-registered issuance programmes

Basic charge

Initial examination and registration of a SIX-registered issuance programme

6,000 Swiss francs

Additional charge

Examination of the listing prospectus (Final Terms) in connection with a SIX-registered issuance programme

2,000 Swiss francs

Basic charge

Examination and registration of the annual update of a SIX-registered issuance programme

3,000 Swiss francs (each year of an ongoing registration)

Registration of new issuers

Additional charge

Registration of a new issuer

10,000 Swiss francs