SWITZERLAND Law and Practice Contributed by: Lorenzo Olgiati and Pascal Hubli, Schellenberg Wittmer Ltd
4.4 Shareholder Claims Under Swiss company law, D&O liability actions may be brought against the members of the board and executive management by: • the company; • the shareholders; and • in the event of the company’s bankruptcy, the company’s creditors (see 3.8 Breach of Directors’ Duties ). 4.5 Shareholders in Publicly Traded Companies FinMIA requires that the beneficial owners who, direct - ly or indirectly or acting in concert with third parties, acquire or sell equity securities (shares, any kind of rights to buy or sell including options or other financial instruments) of a Swiss-listed company (or a foreign company primarily listed on a Swiss stock exchange) must notify the company and the stock exchange within four trading days if their holdings reach or cross any of the following voting rights thresholds: 3%, 5%, 10%, 15%, 20%, 25%, 33.33%, 50% or 66.66%. Within two additional trading days, the com - pany must publicly disclose to the market any reports it has received concerning such significant sharehold - ings. A potential revision under consideration includes increasing the minimum threshold from 3% to 5%. 5. Corporate Reporting and Disclosures 5.1 Financial Reporting Requirements All Swiss companies are obliged to prepare an annu - al report with the annual accounts, composed of the balance sheet, the profit and loss statement, and the notes to the accounts. Larger companies must addi - tionally draw up a cash flow statement and a man - agement report. In general, the annual report must be made available to the company’s shareholders. In private companies, however, it does not have to be disclosed to the public. SIX-listed companies must publish (by ad hoc announcement) audited annual reports and unaudited half-yearly interim financial reports in accordance with International Financial Reporting Standards or, where
permitted within the respective trading segment, with alternative recognised accounting standards (such as US GAAP or Swiss GAAP-FER). 5.2 Corporate Governance Arrangement Disclosure In contrast to privately held companies, listed com - panies and their shareholders have to fulfil certain reporting and disclosure requirements provided for by the SIX Listing Rules, starting with a duty to dis - close significant shareholdings (see 4.5 Shareholders in Publicly Traded Companies ). Further requirements include the following. Ad Hoc Publicity As a rule, a listed company must immediately disclose to the market any non-publicly known, price-sensitive facts that arise in connection with its business. A fact is considered price-sensitive if its disclosure is likely to cause a significant change in market prices and influ - ence a reasonable market participant’s investment decision (ex ante determination). A price change is deemed significant if it substantially exceeds the usual price fluctuations. The SIX Listing Rules and the SIX Directive on Ad Hoc Publicity were partially revised in 2021, with the fol - lowing main changes: • the new regulations repeal the practice of per se price-sensitive information and leave the determi - nation of whether information is price sensitive to the issuer (other than for the annual and interim reports); • ad hoc announcements containing price-sensitive information must now be flagged as such (“Ad hoc announcement pursuant to Article 53 SIX Listing Rules”) and be made separately available and eas - ily identifiable on the issuer’s website; and • additionally, issuers are required to implement ade - quate and transparent internal rules or processes to ensure the confidentiality of price-sensitive facts whose disclosure has been postponed. Information on Management and Control Mechanisms The SIX Directive Corporate Governance requires SIX-listed issuers to include in their annual report a
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