FINANCIAL COMMUNICATION: FRAMEWORK AND PRACTICES - 2019 EDITION

98 Before initiating any data room procedure, each of the participants must sign a confidentiality agreement aimed at preventing the dissemination and use of insider information. When information exchanged in a data room becomes insider information, the issuer must either make it public or delay disclosure in accordance with the requirements set out by the Market Abuse Regulation 151 . In order to reiterate the principle of equal access to information in the course of a financial transaction, the AMF also expects issuers to publish all insider information communicated between the future investor(s) and the company in the prospectus or the offer document. This disclosure does not release the issuer from its responsibility to disseminate insider information in accordance with article 17-1 of the Market Abuse Regulation. The AMF stipulates that in the event that a data room is organised in the course of a public offering and, if there are several competing bids, the issuer needs to ensure access for all of the competitors to the information contained in the data room and enter into a confidentiality agreement with each one. Lastly, the AMF recommends that issuers only set up a data room that leads or is likely to lead to the transfer of insider information in the context of major transactions. Signature of a firm agreement Upon the issuer’s signing of a firm agreement concerning an acquisition or disposal transaction, the issuer shall judge whether immediate market disclosure is necessary or timely with regard to the material nature represented by the acquisition or disposal for the issuer. It can also decide to delay releasing the information as long as the required conditions are met 152 . The material nature of the disposal or acquisition, depending on the case, should be assessed in particular with regard to the size of the acquisition and its estimated impact on the issuer’s business, results and financial structure, the strategic, financial, commercial and/or industrial importance of the transaction for the issuer and the capital gain or loss realised by the issuer in the event of a disposal. If the transaction is not of material importance for the issuer, market disclosure may nonetheless be made if announcement of the acquisition would correspond to an expectation on the part of the market. Market disclosure is made by the publication of a press release. In certain cases, the issuer will also organise a meeting for analysts or a press conference relative to the transaction. In practice, the press release disseminated by the issuer generally includes a description of the target (businesses, financial results and outlook) and strategic, financial, commercial and/or industrial objectives pursued by the issuer in the framework of the acquisition or disposal, as appropriate. The press release also outlines any pending conditions precedent to the completion of the transaction (regulatory and competitive authorisations, etc.) and provides a provisional timetable for the transaction (a sample press release is shown in Appendix 2 of the Guide to filing regulatory information with the AMF and to its dissemination). 151 – See Part 1, Section 5 “Requirement for market disclosure of ’insider information’ concerning the issuer”, pages 20 et seq. 152 – See Part 1, Section 5 “Requirement for market disclosure of ’insider information’ concerning the issuer”, pages 20 et seq. Signature of a firm agreement: n AXA