Stake building. June 2012

Transcription

1 June 2012

2 CONTENTS Contents overview Disclosure obligations re. ownership percentage Disclosure obligations re. derivative positions October

3 OVERVIEW - overview Disclosure obligations Disclosure obligations re. share ownership triggered when certain thresholds of a listed stock corporation's (target) voting rights are acquired Disclosure obligations re. certain financial instruments entitling its holder to acquire shares Disclosure obligations re. intentions of shareholder and origin of funds by crossing the 10% threshold Disclosure obligations for cash-settled derivatives to prevent an unnoticed stake building in German targets October

4 EXISTING DISCLOSURE RULES Disclosure obligations re. ownership percentage Prompt disclosure when a threshold is crossed Shareholder must inform the target and the Federal Financial Services Supervisory Authority (BaFin) when it acquires 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% and 75% of target's voting rights Certain voting rights are attributed to the shareholder and are to be added to the voting rights directly held by the shareholder for the calculation of the relevant thresholds Voting rights held by subsidiaries, Voting rights held by third parties for the account of the shareholder, Voting rights which the shareholder has transferred to third parties as collateral when the third parties have no intention to exercise such voting rights Voting rights for which a usufruct right has been created for the benefit of the shareholder Voting rights which the shareholder may acquire by declaration of intent Voting rights which are entrusted to the shareholder or which he can exercise under power of attorney, to the extent that shareholder can exercise the voting rights from these shares at its own discretion Voting rights which are property of a third party with which shareholder agrees its conduct (acting in concert) Failure to promptly disclose can result in the shareholder loosing its voting and dividend rights and may raise insider trading issues BaFin's usual practice of tolerating a delay of a couple of days does not apply in case of ongoing purchases (i.e. stake must be notified immediately) Disclosure of intention pursued with acquisition of shares and of the origin of the funds after crossing the 10% threshold October

5 DISCLOSURE RULES Disclosure obligations re. derivative positions Disclosure obligations not only for "financial instruments" granting the shareholder a unilateral right to acquire shares to which voting rights are attached but also for all other derivatives structured in a way which enables their holders to acquire existing shares in target Disclosure obligations apply to financial instruments entitling their holder to acquire shares to which voting rights are attached Any derivatives (also cash-settled) which may result in an acquisition of shares in the target by the holder of the derivatives need to be disclosed, even if the holder does not have any right or factual influence to acquire the underlying shares in the target Instruments which need to be disclosed: position as put option seller (Stillhalterposition), claim for the return of shares against the lender of a securities loan/against the party of a repurchase agreement, CFDs, cash-settled equity swaps, call and put options (either cash or physically settled) Financial instruments relating to baskets or indices shall also be disclosed First key threshold is 5% (i.e. crossing 3% does not trigger obligation to inform target and BaFin) Every share purchase with settlement later than t+2 must be notified as a financial instrument Level of shareholding is to be added (aggregation) October

6 DISCLOSURE RULES Disclosure obligations re. derivative positions (cont d) Exemption for issuers No disclosure obligations for standard (financial) instruments issued and held by a securities firm (bank) in the course of its ordinary business Failure to promptly apply the disclosure rules can result in a fine and in insider trading and market manipulation charges (the latter two to be reviewed on a case-by-case basis) Changes are restricted to disclosure regime derivatives do not count for the 30% threshold triggering the mandatory tender offer requirement October

7 Stake Building Clifford Chance, PO Box , Frankfurt am Main, Mainzer Landstrasse 46, Frankfurt am Main Clifford Chance 2009 Clifford Chance Partnerschaftsgesellschaft von Rechtsanwälten, Wirtschaftsprüfern, Steuerberatern und Solicitors Sitz: Frankfurt am Main AG Frankfurt am Main PR 1000 GERMANY v3