Banking and finance: Zurich

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The proceedings concerned an appeal filed by the Albanian football club KS Skënderbeu against a decision issued by UEFA. Due to various match-fixing activities, UEFA excluded the club from participating in UEFA competitions for the next ten years and ordered the club to pay a fine in the amount of EUR 1 million. On 12 July 2019, CAS dismissed the appeal and confirmed the decision of UEFA. Bär & Karrer assisted UEFA in these proceedings. The team was composed by Saverio Lembo, Lukas Stocker and Mirjam Trunz (all sports arbitration).

Cembra Money Bank has agreed to acquire cashgate. The purchase price for the acquisition of cashgate and the refinancing of cashgate's loan portfolio is partly backed by a bridge facility and is financed and refinanced by the sale of treasury shares (gross proceeds of CHF 112.8 million) in an accelerated bookbuilding, the placement of CHF 150 million perpetual additional Tier 1 bonds and CHF 250 million net share settled convertible bonds. Bär & Karrer acted as legal advisor to Cembra for the financing of the acquisition. The team included Thomas U. Reutter, Roland Truffer, Rashid Bahar, Annette Weber, Alexander von Jeinsen and Rebecca Schori (all Capital Markets) as well as Susanne Schreiber, Markus Mühlemann and Angelica Schwarz (all Tax).

Industry-led InsurTech B3i Services AG successfully raised additional funds from current shareholders and new investors to further develop and grow its blockchain-based insurance transaction platform. B3i was founded in October 2016 as an insurance industry consortium which then formed B3i Services AG as an independent company. The shareholder group includes some of the world's largest insurers and reinsurers from across Europe, the Americas, and Asia. B3i intends to further expand its shareholder base over the next several months. Bär & Karrer acts as legal advisor to B3i in this transaction. The team is led by Eric Stupp and includes Gadi Winter, Stephanie Walter, Selina Ragaz (all Banking & Finance) and Michael Rohrer (Notary).

Bär &Karrer is pleased to announce that it further strengthens its Financing and Sports practices with new partners Lukas Roesler and Dr. Jan Kleiner, both of whom have worked with the firm previously. Lukas Roesler is a very experienced Finance and Restructuring practitioner with more than 15 years of practice in the field. He has had a leading position with Credit Suisse in the finance and restructuring legal team and advised on structured & non-standard finance transactions. Lukas Roesler's areas of expertise include acquisition finance, leveraged finance, real estate finance, project finance, complex margin loans, syndications, bridge finance, cash pooling, restructuring, employee participation services and related banking products. Lukas will join Bär & Karrer on 1 August 2019. Dr. Jan Kleiner is one of the leading Sports lawyers in Switzerland and Europe. Jan has profound expertise in all aspects of national and international sports law. In particular, Jan has vast experience in representing clients before the Court of Arbitration for Sport, decision-making bodies of international sports federations and State Courts, including the Swiss Federal Tribunal. In addition, Jan is also a recognized practitioner in the areas of media and data protection law, with a particular focus on data protection in sports. Jan is a lecturer in international sports law at the University of Zurich and in various other international Master programs. Jan will join Bär & Karrer as of 1 May 2019 as Co-Head of the Sports Team. Senior partner Daniel Hochstrasser comments: "We are very excited about the return of two alumni into our ranks as partners. I am sure Jan Kleiner and Lukas Roesler as leading practitioners in their respective fields will contribute to the further growth and success of our firm". For further information please contact: Media Relations, Eric Stupp Tel: +41 58 261 50 00 Email: : [email protected] Bär & Karrer is a renowned Swiss law firm with more than 150 lawyers, providing customized legal advice in complex transactions and litigation. Clients range from multinational corporations to private individuals in Switzerland and abroad. Bär & Karrer is present with offices in all main language regions in Switzerland and operates globally via an international network of leading law firms. For further information please visit baerkarrer.ch.

Today, Novartis AG completed the spin-off of the Alcon eye care devices business, and Alcon Inc. debuted as independent publicly traded company. The Alcon shares were successfully listed on the SIX Swiss Exchange Ltd. and the New York Stock Exchange. They are also included in the Swiss Market Index (SMI), which comprises the 20 largest Swiss listed stocks. The spin-off has been effected through a tax-neutral dividend-in-kind distribution of Alcon shares to holders of Novartis shares and ADRs that was previously approved by Novartis shareholders. It has been preceded by the complete legal and structural separation of the Alcon business into a standalone company through a series of transactions. Alcon is a global leader in eye care and the largest eye care device company in the world, with complementary businesses in surgical and vision care. In light of Alcon's market capitalization of more than CHF 28bn (at close of trading on SIX Swiss Exchange), it was the largest spin-off and listing on the SIX Swiss Exchange in a decade at least. Bär & Karrer has acted as Swiss legal and tax advisor to Novartis and Alcon in the planning and implementation of this transaction. The team was led by Rolf Watter, Urs Kägi, Thomas U. Reutter and Susanne Schreiber and included Vera Naegeli, Nadina Duss, Annina Hammer, Frédéric Mancosu and Matthias Tanner (all Corporate and M&A), Daniel Raun and Annette Weber (both Capital Markets), Christoph Suter, Lukas Scherer, Matthias Bizzaro and Kerem Altay (all Tax), Roland Truffer and Alexander von Jeinsen (both Financing), Markus Wang (IP) and Laura Widmer (Employment).

Primeo Energie, EOS Holding SA (EOS) and Électricité de France (EDF) have entered into a share purchase agreement relating to the purchase by Primeo Energie and EOS of the 25% interest held by EDF in Alpiq Holding SA. The purchase by Primeo Eergie and EOS will be financed through mandatory exchangeable loan agreements made by CSA Energie-Infrastruktur Schweiz (CSA) as lender, the biggest investment pool for Swiss energy infrastructure with 135 Swiss pension funds acting as investors. At maturity the mandatory exchangeable loan agreements will be converted into shares in Alpiq. Primeo Energie and EOS thereby pave the way for a Swiss shareholder structure of Alpiq. Bär & Karrer acted as legal advisor to Primeo Energie and CSA Energie-Infrastructure Schweiz. The team was led by Ralph Malacrida and included Thomas Stoltz, Dieter Dubs, Sandrine Studer, Alexander von Jeinsen, Janine Wüst, Frédéric Mancosu, Charles Gschwind, Grégory Pauli, Nina Sauerwein (all M&A and Corporate), Susanne Schreiber, Cyrill Diefenbacher (both Tax) as well as Mani Reinert (Competition Law).

Bär & Karrer was awarded „Most innovative law firm of the year - Switzerland", the national award for Switzerland given in the IFLR European Awards. The most innovative law firm of the year award recognizes Bär & Karrer as the Swiss law firm with the best track record in 2018 giving advice on the most innovative cross-border deals covering all award practice areas. It is already the third prize of this kind in period of six years awarded to Bär & Karrer. In addition, Bär & Karrer received the European deal award in the category "Debt & Equity-linked Deal of the Year" for its work on the offering of Swiss Re senior exchangeable notes with issuer stock settlement. Bär & Karrer acted as adviser to Swiss Re in this transaction. International Financial Law Review (IFLR) annually awards the most innovative international deals and the law firms that advised on them. Bär & Karrer was also shortlisted in the following European categories: "Equity Deal of Year" and "Restructuring Deal of the Year".

Cowen Inc., a NASDAQ listed, diversified financial services firm, agreed to acquire the Quarton group, a global financial advisor serving the middle market. Closing is expected in early 2019. Bär & Karrer acts as Swiss counsel to Cowen. The team includes Christoph Neeracher, Luca Jagmetti and Jonatan Riegler (all M&A) as well as Susanne Schreiber (Tax). Willkie Farr & Gallagher acts as international counsel to Cowen.

On 19 November 2018, ARYZTA, a global food business with a leadership position in speciality bakery, completed a capital increase by way of a rights offering structured as a volume underwriting in the amount of approximately CHF 900 million. 97.4% of the shareholders of ARYZTA exercised their subscription rights in the rights offering. The new shares not subscribed were placed in the market. The banking syndicate comprised BofA Merrill Lynch and UBS as Process Banks and Joint Global Coordinators, Credit Suisse, JP Morgan and HSBC Bank plc as additional Joint Global Coordinators and Crédit Agricole CIB, Mizuho International plc and Rabobank as Joint Bookrunners. Bär & Karrer acted as legal adviser to the syndicate banks in this transaction. The team included Thomas U. Reutter, Michael Trippel, Alexander von Jeinsen, Annette Weber, Carlo Hunter and Manuela Cassano (all Capital Markets), Dieter Dubs (Listed Companies/Takeover Law) as well as Susanne Schreiber and Lukas Scherer (both Tax). On 19 November 2018, ARYZTA, a global food business with a leadership position in speciality bakery, completed a capital increase by way of a rights offering structured as a volume underwriting in the amount of approximately CHF 900 million. 97.4% of the shareholders of ARYZTA exercised their subscription rights in the rights offering. The new shares not subscribed were placed in the market. The banking syndicate comprised BofA Merrill Lynch and UBS as Process Banks and Joint Global Coordinators, Credit Suisse, JP Morgan and HSBC Bank plc as additional Joint Global Coordinators and Crédit Agricole CIB, Mizuho International plc and Rabobank as Joint Bookrunners. Bär & Karrer acted as legal adviser to the syndicate banks in this transaction. The team included Thomas U. Reutter, Michael Trippel, Alexander von Jeinsen, Annette Weber, Carlo Hunter and Manuela Cassano (all Capital Markets), Dieter Dubs (Listed Companies/Takeover Law) as well as Susanne Schreiber and Lukas Scherer (both Tax).

On 14 September 2018, the Federal Council extended the transition period for the reporting of derivative transactions by small non-financial counterparties (NFC-) until 1 January 2024 under the Financial Market Infrastructure Act (FMIA). The amendment to the Financial Market... Read more: /developments/wp-content/uploads/sites/19/2018/10/DerivativesTradingUnderFMIA.pdf 

In a recent decision 6B_689/2016 of 14 August 2018, the Swiss Federal Supreme Court held that the failure to disclose adequately retrocessions may constitute an act of criminal mismanagement. After a short summary of the legal framework governing the disclosure of retrocessions, the present briefing analyses this decision and its practical impact in particular for Swiss financial institutions dealing with external asset managers. Background Retrocessions and other distribution fees paid to asset managers have been the subject of major legal development over the past 12 years in the Swiss banking and financial sector. Over the course of several groundbreaking decisions (FSC 132 III 432; FSC 137 III 393; FSC 138 III 755), the Swiss Federal Supreme Court held that an asset manager was entitled to retain retrocessions and other distribution fees it received in connection with its mandate only on the basis of a comprehensive waiver based on an informed consent, otherwise it is required to hand them over to its client. The disclosure requirements defined by case law are exacting: the information should at the very least define the parameters based on which the retrocessions are calculated and include the range, expressed as a percentage of the assets under management, of the expected compensation, so as to put them into perspective with the management fees. Furthermore, the client must be informed of the risks arising out of the conflict of interests generated by retrocessions and the measures taken to avoid or mitigate them (FSC 137 III 393). These principles have been, further, codified in the new regulatory framework applicable to financial service providers in the Financial Services Act. Until now, however, the Swiss Federal Supreme Court had dealt with this issue in connection with civil law disputes and could leave untouched the criminal aspects of this issue, in particular in light of the provision on criminal mismanagement (article 158 Swiss Criminal Code, "SCC") (see FSC 6B_845/2014 dated 16 March 2015, E. 3.2.2). This is the key issue that the Swiss Federal Supreme Court addressed in its decision of 14 August 2018. Approach of the Swiss Federal Supreme Court: Failure to disclose may be an act of criminal mismanagement As a matter of civil law, the duty of accountability is two pronged: first, it implies an obligation to account to the principal of the activity carried out in connection with the mandate and disclose any profits collected. The second prong is a duty to hand over any such profits to the principal. While the Swiss Federal Supreme Court had settled, in a case predating the developments in civil law, that a breach of the duty to hand over retrocessions does not constitute an act of criminal mismanagement as long as the asset manager did not act in a manner that was damageable to the interests of its client because of the retrocessions (SFC 129 IV 124), the question whether a breach of the obligation to account for retrocessions by failing to duly inform the client could constitute a criminal offence was unsettled and subject to doctrinal controversies. In its decision 6B_689/2016 of 14 August 2018, the Swiss Federal Supreme Court takes a harsh approach: it considers that, in the context of a mandate relationship, the duty of accountability (article 400(1) of the Swiss Code of Obligations) gives rise to a qualified obligation to act and to preserve the interests of the principal. Consequently, a breach of the duty to inform the principal may, even by mere omission, constitute an act of criminal mismanagement pursuant to article 158 SCC. Furthermore, the Swiss Federal Supreme Court holds that the asset manager cannot claim that it acted in good faith by relying on a generic waiver that did not meet the exacting standards set forth by such Court in its above-mentioned decisions. Quite to the contrary, it ruled that this defense was without merits since the requirements for a valid waiver had been set forth in its precedent of 2006 (SFC 132 III 460). This conclusion is extremely severe since it establishes criminal intent to breach the duty to inform the client on the sole basis that the defendant did not abide with the standards defined by the case law of the Swiss Federal Supreme Court. The conclusions of the Swiss Federal Supreme Court are all the more harsh, considering that the first decision of 2006 related to a case where the asset manager had not even included a generic waiver of the obligation to hand over retrocessions. Therefore, the considerations of the court in 2006 regarding the disclosure standard required to achieve an informed consent were mere obiter dicta and, looking back at the evolution of the case law on retrocessions, the watershed moment came five years later, when the court held in its decision of 2011 that the duty of accountability applied to all benefits received in connection with a mandate, including distribution fees and intra-group payments unless the client gave its informed consent to waive this duty (FSC 137 III 393). A landmark decision due to peculiar circumstances While the decision 6B_689/2016 of 14 August 2018 sets a new milestone in the field of retrocessions, the facts and circumstances surrounding that case are very peculiar: in the case at hand, the defendant was not only acting as an asset manager but had also been appointed as legal guardian of his incapacitated client. Further, the guardian committed various other gross breaches and criminal offences in the performance of its mandate. After facing significant losses in the aftermath of the financial crisis of 2008, the asset manager forged statements to conceal the losses from its clients and used client assets to meet reimbursement's requests of other clients. The asset manager also forged documents to avoid questions by the custodian bank. Finally, it charged management fees in excess of those agreed with the guardianship authority. The factual background therefore certainly played a decisive role in the decision of the Swiss Federal Supreme Court. Nevertheless, the Court framed its judgment in general and unequivocal terms. Moreover, the Swiss Federal Supreme Court also issued a press release relating to this decision and announced that it would publish it in its official reporter, a sign that it should be read as an important precedent rather than an isolated decision. Practical impact Given the peculiar circumstances of the case, the impact of this decision on the financial industry at large is difficult to predict. In any event, any financial institution paying or receiving retrocessions and other distribution fees should consider the potential implications of this decision: - First and foremost, asset managers and financial institutions receiving retrocessions and other distribution fees should ensure – if this is not already the case – that their waivers provide for sufficient disclosure to ensure an informed consent and, in the negative, consider taking appropriate remedial action; - Second, financial institutions should not accept to pay retrocessions and other distribution fees unless they are comfortable that the recipient either hands them over to its clients or relies on a valid waiver to retain them. This measure can be implemented by seeking an explicit representation when entering into an agreement with the recipient and seeking additional comfort if there are reasons to believe that the representation may not be correct; - Finally, since aggravated criminal mismanagement, which supposes that the asset manager committed the breach of duty with the aim to unlawfully enrich itself or a third party, is a crime and, hence, a potential predicate offence to money laundering under Swiss law, financial institutions maintaining accounts where retrocessions and other fees are paid must consider the risks of such transactions from an anti-money laundering perspective: if they have a doubt whether the asset manager holds a valid waiver that entitles it to retain the retrocessions, the financial institutions are required to investigate the matter and, if the clarifications are not conclusive, report their suspicions to the Money Laundering Reporting Office of Switzerland.

Auris Medical Holding AG (NASDAQ: EARS) issued and priced its public offering of 10,000,000 common shares and 10,000,000 warrants, each warrant entitling its holder to purchase 0.70 of a common share.  The common shares and warrants are being sold in units comprised of one common share and one warrant at the public offering price of USD 1.00 per unit. The warrants will be immediately exercisable at a price of USD 1.20 per common share and are exercisable for five years. In connection with the offering, the Company has granted the underwriter a 30-day option to purchase up to 1,500,000 additional common shares and/or 1,500,000 additional warrants at the public offering price less underwriting discounts. The offering is expected to close on or about February 21, 2017, subject to customary closing conditions. Roth Capital Partners is acting as sole book-running manager in the offering. Maxim Group LLC is acting as a financial advisor in the offering. Auris Medical is a Swiss biopharmaceutical company dedicated to developing therapeutics that address important unmet medical needs in otolaryngology. The shares of Auris Medical trade on the NASDAQ Global Market. Walder Wyss advises Auris Medical on Swiss law aspects of the transaction. The team is being led by Alex Nikitine (Partner, Capital Markets, Corporate/M&A) and further includes Sarah Schulthess (Associate, Capital Markets, Corporate/M&A), Janine Corti (Counsel, Tax) and Ayesha Curmally (Partner, Notary). Davis Polk & Wardwell advises Auris Medical on US law aspects. Cooley (as to US law) and Pestalozzi (as to Swiss law) act as legal advisors to Roth Capital Partners.

Cembra Money Bank has reached an agreement to acquire 100% of the shares of SWISSBILLING. The transaction is expected to close within the first quarter of 2017. The transaction consideration was below CHF 10 million and is expected to have a negative impact of 0.1% on the Group’s CET1 ratio as at closing. Walder Wyss advises Cembra Money Bank on this transaction. The Walder Wyss team includes Markus Pfenninger (Lead Partner, Banking Finance), Alex Nikitine (Partner Capital Markets/Corporate M&A), Fabian D. Glässer (Associate, Banking Finance) und Christoph Stutz (Associate, Corporate/Employment).