How To Understand The Transparent Directive 2

Transcription

1 Transparency Directive 2 Are you ready? Darren Fox 25 June 2015

2 Introduction Current state of play under TD1 Changes under TD2 Some tricky issues experienced under TD1 (and how TD2 might impact them) 2

3 TD1 recap on key facts In force since January 2007 Introduced minimum transparency requirements for major shareholdings across the European Economic Area Applicable to issuers admitted to trading on EEA regulated markets Focussed on holdings of voting rights Operates as a minimum harmonisation regime 3

4 TD1 - the detail Initial disclosure threshold at 5% Subsequent disclosure at 10%, 15%, 20%, 25%, 30%/33.3%, 50% and 75%/66.7% Calculated by reference to gross long positions (no netting) Takes into account other financial instruments that entitle the holder (on its own initiative alone) to acquire voting shares that have already been issued Excludes cash-settled instruments instruments entitling the holder to acquire shares that have not yet been issued certain types of physically-settled option (e.g. short puts) 4

5 TD1 instrument coverage in depth Included Voting shares Depositary receipts Physically-settled, long, single stock call options (if manually exercised) Physically-settled, long, single stock futures Covered warrants Exchangeable bonds Excluded Non-voting shares (e.g. non-voting preference shares) Cash-settled single stock swaps/cfds Cash-settled single stock options Physically-settled, long single stock call options (if auto exercised) Physically-settled, short single stock put options Cash-settled single stock futures Cash-settled index options, futures and swaps, where the relevant issuer s stock is a component stock Index-tracking ETFs, where the relevant issuer s stock is a component stock Traditional warrants Convertible bonds (incl CoCos) Rights Variance/volatility swaps, dividend swaps 5

6 TD1 miscellaneous Stock lending/borrowing treatment left to national discretion Attribution voting rights attached to shares held by funds/managed accounts attributed to their asset managers (if the manager has voting discretion) voting rights held by subsidiaries attributed to their parent undertakings, subject to possible disaggregation exemption Notification timing notification by holder to issuer by T+4 publication by issuer by N+3 6

7 TD1 impact of minimum harmonisation Home state concept EEA-incorporated issuers = member state of incorporation non-eea issuers whose shares are admitted to trading on a regulated market = EEA member state chosen by the issuer (usually the state of the initial EEA listing) Huge variation between member states as to initial and subsequent thresholds 7

8 TD 1: Initial disclosure thresholds Iceland Finland Key: Lowest initial disclosure threshold under the TD1 rules Norway Sweden Estonia Latvia 5% Lithuania Denmark 3% Ireland UK 2% Netherlands Poland Germany Belgium 1% Czech Republic Luxembourg Austria France Liechtenstein Slovak Republic Hungary Romania Slovenia Croatia Bulgaria Italy Portugal Greece Spain Gibraltar 8 Cyprus Malta

9 TD1 impact of minimum harmonisation Home state concept EEA-incorporated issuers = member state of incorporation non-eea issuers whose shares are admitted to trading on a regulated market = EEA member state chosen by the issuer (usually the state of the initial EEA listing) Huge variation between member states as to initial and subsequent thresholds inclusion of financial instruments 9

10 TD 1: Inclusion of cash-settled instruments Iceland Finland Key: Does the current TD1 based regime include a disclosure requirement that takes cash-settled derivatives into account? Norway Sweden Estonia Latvia Lithuania Denmark Yes Ireland UK No Netherlands Poland Germany Belgium Czech Republic Luxembourg Austria France Liechtenstein Slovak Republic Hungary Romania Slovenia Croatia Bulgaria Italy Portugal Greece Spain Gibraltar 10 Cyprus Malta

11 TD 1: Inclusion of warrants and CBs Iceland Finland Key: Does the current TD1 based regime include a disclosure requirement that takes warrants/cbs into account? Norway Sweden Estonia Latvia Lithuania Denmark Yes Ireland UK No Netherlands Poland Germany Belgium Czech Republic Luxembourg Austria France Liechtenstein Slovak Republic Hungary Romania Slovenia Croatia Bulgaria Italy Portugal Greece Spain Gibraltar 11 Cyprus Malta

12 TD1 impact of minimum harmonisation Home state concept EEA-incorporated issuers = member state of incorporation non-eea issuers whose shares are admitted to trading on a regulated market = EEA member state chosen by the issuer (usually the state of the initial EEA listing) Huge variation between member states as to initial and subsequent thresholds inclusion of financial instruments treatment of stock borrowers 12

13 TD 1: Inclusion of stock borrows Iceland Finland Key: Does the current TD1 based regime take borrowed shares into account as part of the borrower s numerator calculation? Norway Sweden Estonia Latvia Lithuania Denmark Yes, unconditionally Ireland UK Yes, if the shares have been held for a certain time period Netherlands Poland Germany Belgium Czech Republic Luxembourg No Austria France Liechtenstein Slovak Republic Hungary Romania Slovenia Croatia Bulgaria Italy Portugal Greece Spain Gibraltar 13 Cyprus Malta

14 TD1 impact of minimum harmonisation Home state concept EEA-incorporated issuers = member state of incorporation non-eea issuers whose shares are admitted to trading on a regulated market = EEA member state chosen by the issuer (usually the state of the initial EEA listing) Huge variation between member states as to initial and subsequent thresholds inclusion of financial instruments treatment of stock borrowers notification timing 14

15 TD 1: Notification timing Iceland Finland T+0 T+1 Norway Sweden Estonia T+2 Latvia T+3 Lithuania Denmark T+4 Ireland UK Netherlands Poland Germany T+5 Belgium Czech Republic Luxembourg Austria France Liechtenstein Slovak Republic Hungary Romania Slovenia Croatia Bulgaria Italy Portugal Greece Spain Gibraltar 15 Cyprus Malta

16 TD1 impact of minimum harmonisation Home state concept EEA-incorporated issuers = member state of incorporation non-eea issuers whose shares are admitted to trading on a regulated market = EEA member state chosen by the issuer (usually the state of the initial EEA listing) Huge variation between member states as to initial and subsequent thresholds inclusion of financial instruments treatment of stock borrowers notification timing impact of attribution from funds to managers impact of attribution from subsidiaries to parents application to other (non-regulated) markets application on a share class-by-share class basis application to non-voting shares 16

17 TD2 what s new? Takes effect 26 November 2015 (baseline disclosure likely to be required) Numerator now includes financial instruments which are referenced to in-scope shares that have an economic effect similar to instruments that entitle the holder to acquire in-scope shares, whether or not they confer a right to a physical settlement Delta adjustment for cash-settled instruments RTS provides minimum standards for delta adjustment methodology Index/basket positions included if the issuer represents 20% or more of the index/basket or the long position arising under the index/basket in relation to the individual issuer represents 1% or more of the issued voting shares of the issuer Stock lending borrows are not (even conditionally) exempt (changes prior UK position) lending gives rise to a notification obligation (change from owning the voting shares to a right of recall = similar economic effect financial instrument) status of rehypothecated shares? AND still minimum harmonisation only national gold plating remains likely 17

18 TD2 instrument coverage Included (without delta adjustment) Voting shares Included (with delta adjustment) Cash-settled single stock swaps/cfds Excluded Non-voting shares (e.g. non-voting preference shares) Depositary receipts Cash-settled single stock options Traditional warrants Physically-settled single stock options Physically-settled single stock futures Covered warrants Exchangeable bonds Cash-settled single stock futures Cash-settled index options, futures and swaps, where the relevant issuer s stock is a component stock (if they pass the substance test) Index-tracking ETFs, where the relevant issuer s stock is a component stock (if they pass the substance test) Convertible bonds (incl CoCos) Cash-settled index options, futures and swaps, where the relevant issuer s stock is a component stock (if they fail the substance test) Index-tracking ETFs, where the relevant issuer s stock is a component stock (if they fail the substance test) Rights Volatility/variance swaps Dividend swaps 18

19 TD2 changes to notification mechanics Position notifications required to breakdown the holding between: instruments that entitle the holder on its own initiative to acquire shares v other financial instruments and physically-settled instruments v cash-settled instruments Notification required when reaching a threshold (1) via a holding of physical shares, on a stand-alone basis (2) via a holding of other financial instruments, on a stand-alone basis (3) when aggregating (1) and (2) 19

20 Some common problems under TD1 (and some thoughts on whether TD2 solves them ) Lack of maximum harmonisation Reliability of Bloomberg for denominator information Rights issues Aggregation within fund management groups Regulators not following the TD rules (e.g. Jazztel) 20

21 Questions 21

22 Contact details Darren Fox T: +44 (0) E: 22

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24 simmons-simmons.com elexica.com 24