FINANCIAL COMMUNICATION: FRAMEWORK AND PRACTICES - 2019 EDITION

83 Order no. 2015-1576 of December 3, 2015 amended the scope of disclosures made in respect of crossing thresholds. n Article L. 233-7 I of the French Commercial Code now states that shares included in the calculation of shareholding thresholds may be owned “directly or indirectly”. n The scope of financial instruments excluded from the calculation has been enlarged. In addition to shares, this now also includes agreements and financial instruments listed in article L. 233-7 and article L. 233-9 of the French Commercial Code that meet certain criteria (acquired for the sole purpose of clearing, held by custodians, held in the trading portfolio of an investment services provider, acquired for the purpose of stabilisation, etc.). n Agreements and financial instruments giving rise to a physical or cash settlement (article L. 233-9 I 4° bis of the French Commercial Code) and options that are exercisable immediately or in the future, are now included in the shares and voting rights used to calculate crossing of thresholds that must be disclosed. Clearly, only instruments giving long positions need to be included. However, the AMF recently considered that a double assimilation was needed when physical calls were acquired by a party and physical puts sold by the same party, even though the characteristics of the situation make it impossible to truly acquire the shares underlying the calls and puts (a clause nullifying the calls or puts, respectively, in the event that these puts or calls are exercised). n The acquisition of securities as part of a buyback programme or a financial instrument stabilisation programme represents another exemption from disclosures of upward or downward crossings of thresholds established by the company’s articles of association and of legal thresholds and temporary sale agreements, provided that the attached voting rights are not exercised or used for purposes other than to intervene in the management of the issuer (article L. 233-7, IV of the French Commercial Code). Lastly, pursuant to article 223-15-1 of the AMF General Regulations, disclosure requirements when crossing statutory and legal thresholds also apply to organised multilateral trading facilities when a single person owns over 50% or 95% of a company’s capital or voting rights. In such cases, not only the AMF but the issuing company as well, must be informed that these thresholds have been crossed. As a result, according to the regulation, the notice of threshold crossing indicates in particular the crossed threshold, the total number of shares and voting rights held, and the name of the shareholder who has crossed the threshold. The shareholder who has crossed the threshold must also specify: n the number of shares that the shareholder owns that give deferred rights to newly issued shares and the corresponding voting rights; n existing shares that the shareholder may obtain, by way of an agreement or a financial instrument that requires physical or cash settlement, not including those that have already been counted in the calculation to determine the crossing of the threshold.