Implenia, the Swiss construction services company, is pleased to note the results of the investigation by the Eidgenössische Bankenkomission (Swiss Federal Banking Commission, “EBK”) published today. The EBK has concluded that the British hedge fund Laxey Partners Ltd. (“Laxey”) acquired its shares in Implenia in an illegal fashion.

After a thorough investigation, the EBK concluded that Laxey’s stake-building in Implenia violated Swiss stock exchange laws. Following an analysis of the transactions in Implenia shares and following an investigation of brokers instructed by Laxey, the EBK has found that Laxey coordinated the purchase of several share parcels through a complex network of Swiss and European banks, and thus deliberately and knowingly infringed Swiss notification rules.

Indirect and clandestine stake-building, as well as indirect ownership of shares is subject to the same disclosure obligations and procedures as the direct acquisition of shares. Laxey deliberately ignored these rules. Due to the clandestine stakebuilding all Implenia shareholders who sold their shares to Laxey in that period were prejudiced. Laxey now faces the threat of a criminal investigation which could result in a fine of up to CHF 250 million (£120m/US$242m), as well as suspension of all of Laxey’s voting rights in Implenia shares for several years. Further, Laxey may be exposed to investor claims.
“Parking” of shares

Implenia's repeated claims that Laxey has broken the law have now been confirmed by the EBK. Between the end of 2006 and the start of April 2007, Laxey instructed at least four brokers to buy Implenia shares, and then “parked” these shares with other financial institutions. Held and parked shares amounted to at least 19.65% of Implenia's share capital, shares were parked with five banks, with no single bank holding more than 4.9%. These banks issued CFDs (contracts for difference) on the underlying shares to Laxey. At a later stage Laxey retrieved the parked shares by exercising the CFD’s.
By 1 January 2007, Laxey held 9.22% of Implenia's share capital directly or indirectly (4.41% in the form of directly owned shares and an additional 4.81% through two CFD positions). The other positions were added between January and March 2007. Between 3 and 16 April 2007 Laxey exercised the greater part of its CFD contracts and retrieved the “parked” Implenia shares that had been used to secure the CFD positions. Laxey disclosed the crossing of the 5% and 10% threshold respectively on 11 April 2007 as well as the 20% threshold on 17 April 2007, although they had actually passed these thresholds already much earlier by using the parking scheme.

The EBK Ruling
The EBK has ruled that Laxey breached Swiss securities law by orchestrating and coordinating the accumulation of its equity positions via various banks, before accessing these positions at a specific point in time. A “parking” of shares with a third party does not absolve the owner of following notification rules, as “parking” is considered to be equal to indirect ownership which must be disclosed. Laxey thus deliberately infringed disclosure obligations and thus damaged all Implenia shareholders who sold their shares to Laxey.
(Quote from FBC report, para 161 (free translation): ”The shares were de facto parked … with the counter-parties of the CFDs and their “recall” was assured at any time. In this manner, Laxey could build its stake secretly … and could consequently buy the stake cheaply because the market price was kept artificially low because of this intransparency. Laxey knew the notification rules of Swiss law and circumvented these rules with full intent using CFDs in a non-traditional way to park Implenia shares.”

Next Steps for Implenia
«The results of the EBK investigation have significant implications on the dispute between Implenia and Laxey,» says Anton Affentranger. «Owing to their illegal conduct, Laxey will have to withdraw as an Implenia shareholder.» In addition and in parallel to the measures taken by the EBK, Implenia is now considering making various filings with the federal and cantonal authorities to ensure that the responsible people are convicted and fined.

More specifically Implenia considers to:

File a motion to suspend Laxey's voting rights on its Implenia shares
File a motion to seize the Implenia shares held by Laxey in order to recover the illegal profits that were made while building up its stake.
Notify the cantonal prosecuting authorities with a criminal suit against Laxey and the responsible Laxey employees for intentional price manipulation. This offence carries a penalty of up to three years imprisonment.
Talk to the British financial regulator the FSA (Financial Services Authority) demanding sanctions against Laxey and its responsible officers.
Call on shareholders that sold Implenia shares between 1 January and 4 April 2007 to transfer their compensation claims against Laxey to Implenia. Implenia would then use Laxey's dividend assets to offset these claims and compensate shareholders.

Chairman Anton Affentranger Comment
«The Laxey case is vitally important to the Swiss financial services industry and could even affect legislation;» according to Anton Affentranger, Chairman of Implenia. «Given the clear evidence of Laxey's illegal practices, meticulously assembled by the EBK, we expect the Eidgenössische Finanzministerium (Federal Department of Finance) to act just as decisively and impose the appropriate sanctions. This would not just be in the interests of the disadvantaged Implenia shareholders, but it would also make clear to the whole market that existing laws cannot be broken with impunity. Such a message would be good for the Swiss financial services sector as a whole.»

Contact:
David Sturken
Liz Morley
Maitland
Tel + 44-20-7379 5151
dsturken@maitland.co.uk
emorley@maitland.co.uk

Swiss EBK Investigation Concludes that Laxey Partners Acquired Implenia Shares Illegally

Switzerland's Eidgenössische Bankenkomission (EBK) presented detailed results of its comprehensive investigation today

Контакты для СМИ

СМИ