The Swiss Financial Market Supervisory Authority (FINMA) ruled on 22 January 2009 that Ronny Pecik sen. and Georg Stumpf, together acting in an organized group, infringed their disclosure obligations under Art. 20 of the Stock Exchange Act when building their stake in Sulzer AG towards the end of 2006 and beginning of 2007. FINMA will, as a result, file a criminal complaint with the Federal Department of Finances as required by law.
Having completed a comprehensive investigation and administrative procedure, FINMA issued a declaratory ruling stating that Ronny Pecik sen. especially purchased respectively controlled Sulzer AG shares by misusing formal cash settled options and that he converted cash settled options into physical settled options. As Ronny Pecik sen. and his co-author, Georg Stumpf, retained in this way potential control over the voting rights associated with these shares and physical settled options, the latter must be attributed to Ronny Pecik sen. and Georg Stumpf. This strategy corresponds to an indirect acquisition according to the stock exchange legislation and is therefore subject to disclosure obligations.
Investors such as Ronny Pecik sen. and Georg Stumpf are partially regulated by FINMA and can be prosecuted in a limited manner under supervisory provisions. By issuing a declaratory ruling against investors FINMA can retain authority over its investigations and the procedure resulting from those investigations. Thus FINMA can make a ruling stating that disclosure obligations were infringed and communicate this ruling to the interested parties, including affected market participants, in order to uphold market transparency and integrity. A ruling of this kind can be challenged before the Federal Administrative Court and, subsequently, before the Federal Supreme Court. This decision dated 22 January 2009 will be published as soon as it comes into force.
FINMA has issued a second ruling on 22 January 2009 and found that the Bank of the Canton of Zürich (BCZ) seriously infringed its obligations while issuing and trading of Sulzer AG securities. BCZ assisted Ronny Pecik sen. especially in an illegal manner when building the stake in Sulzer AG. Moreover FINMA has found several breaches in its organization with regard to this stake building. The BCZ remedied in the meanwhile to those breaches.
This decision against BCZ puts an end to the first procedure initiated against the banks involved in transactions on Sulzer AG securities. The procedures pertaining to Deutsche Bank, Zürich branch and NZB Neue Zürcher Bank are still pending.
Tobias Lux, spokesperson, tel. +41 (0)31 327 91 71, firstname.lastname@example.org