7. Exemptions from Disclosure
In compliance with the Transparency Directive, French law makes certain exemptions to disclosure rules.
First, equity securities held by a market maker need not be disclosed until they reach 5%, on condition that the market maker does not (i) intervene in the issuer's management or (ii) exert any influence on the issuer to buy such equities or to support the price of such equities.92
Second, shares held by an investment services provider within its trading book93 are exempt from disclosure until they reach 5% of the share capital or voting rights of the issuer, provided that the investment services provider ensures that the voting rights attached to those shares are not exercised or otherwise used to intervene in the management of the issuer.94 If market makers and investment firms do not meet these conditions, they are required to make Statutory Threshold Disclosure filings in the usual way.
As noted by the FSA, these exemptions are likely to make it more difficult in practice to identify market activity in cash equities that come from the origination and termination of derivatives. Acknowledging the specificity of securities traded in investment firms' trading books, which are by definition short-term investments, the AMF published two alternative sets of amendments for public comments. Under the first option, the AMF proposed keeping the current exemption threshold at 5% taking only shares into account, without aggregating shares resulting from derivatives. As soon as the investment services provider's stake in an issuer rises above 5% of its shares, the entire trading book becomes subject to the base rule (i.e., shares arising from derivative instruments must also be aggregated). Under the second option, shares held by an investment services provider within its trading book95 would be exempt from disclosure until they reach 3% (instead of 5%) of the share capital or voting rights of the issuer. As soon as the investment services provider's stake in an issuer rises above 3% of its shares, the entire trading book is subject to the base rule (i.e., shares arising from derivative instruments must also be aggregated). Market participants unanimously approved option 1.96 Specifically, several commentators noted that lowering the exemption threshold to 3% would be inconsistent with legislative intent not to lower the first Statutory Disclosure Threshold to 3% and with other regulations in Europe that have adopted the 5% threshold authorized by the Transparency Directive (such as Germany). Accordingly, the AMF adopted option 1.97
8. Disclosure Rules During Tender Offers
8.1. Disclosure of Intent in Connection with Tender Offers
Any person contemplating a financial transaction that might have a material impact on the market price of a financial instrument, or on the financial position and rights of holders of that financial instrument, must state its intent and disclose the main terms of the contemplated transaction to the public as soon as possible. The reporting person may at its own risk postpone this report to the AMF if confidentiality is temporarily necessary to carry out the contemplated transaction.98 The bidder must file a statement of intent with the AMF if the contemplated tender offer can no longer be kept confidential (e.g., in case of market rumors or leaks in the press).
In addition, the AMF may demand a person who it has a reasonable basis to believe is preparing a public tender offer to inform the public of its intentions, within a time period fixed by the AMF. Such would be the case, for example, where a discussion with the issuer or the selection of advisers with the intent of preparing a public tender offer results in significant and abnormal share price or volume fluctuations.99 Pursuant to these rules, if the AMF requests a party to confirm or deny its intention to launch a tender offer, the party has two possible responses. It may deny that it intends to launch an offer, in which case it will be barred from making such an offer for a period of six months.100 Alternatively, it can confirm that it intends to make an offer, in which case the AMF will set a deadline by which the bidder must either publish a description of the terms of the offer or launch the bid.101 Failure to comply with the deadline or properly describe the terms of the offer will be deemed a retrospective denial that the party intends to launch a bid, and that party will be barred for six months from making an offer.102
The declaration rules do not specify the consequences of a deliberately ambiguous response to an AMF request for clarification of a potential bidder's intentions. However, the AMF has demonstrated its willingness to construe any statement, however ambiguous, as either a definitive positive or definitive negative response concerning a potential bidder's intentions.103 The declaration rules leave considerable freedom to the AMF to use its discretion in determining when a declaration of intent should be required.
8.2. Notification Requirements in Connection with Tender Offers
More stringent disclosure rules apply to purchases and sales of equity securities of the target of a tender offer. The same rules apply to the securities of the bidder initiating an exchange offer.
On July 10, 2009, the AMF promulgated an additional set of amendments104 to the AMF General Regulations further tightening the scope of trading restrictions and disclosure duties applicable during tender offers while harmonizing the AMF General Regulations with the MIFID Directive.105 These amendments became effective October 1, 2009.
Pursuant to these amendments, the following persons must report to the AMF, on a daily basis, purchases or sales of securities subject to the tender offer, as well as any transaction likely to result in the transfer of ownership of such securities or voting rights: (i) the offeror, the target company and any parties acting in concert with them; (ii) any members of their boards of directors, supervisory boards, or management teams; and (iii) any individuals or legal entities holding, alone or as part of a group, at least 5% of the share capital or voting rights of the target company or at least 5% of the securities subject to the offer (other than shares).106
The same daily reporting requirements apply to persons or legal entities that have acquired, alone or as part of a group, since the commencement of the offer period or, if applicable, the pre-offer period (as defined below), securities of the target company representing at least 1% (formerly 0.5%) of the target's share capital or at least 1% of securities subject to the offer (other than shares), for as long as they hold such percentage of securities.107
The reports must state (i) the identity of the reporting person and the person or entity that controls it (as defined under Section 4 above); (ii) the date of the trade; (iii) the place of execution of the trade; (iv) the number of securities traded and the trade price; and (v) the number of securities and voting rights held after the trade. The 2010 Proposed Rules propose broadening this disclosure to include the number of securities and voting rights held after the trade by persons acting in concert with the reporting person. Each report must be filed with the AMF by the next trading day using a form set forth in an AMF Instruction.108 The AMF may ask the reporting person for any details or further information that it deems necessary. In the case of a tender offer involving settlement in the securities of the offeror, trades in the securities of both the offeror and the target company must be reported under the same conditions and according to the same procedures.
In 2009, the AMF lengthened the time frame during which these daily reporting requirements apply. Daily reporting by the persons described above commences on the date the AMF discloses the terms of the tender offer, which marks the beginning of the "pre-offer period."
8.3. Disclosures of Intent During Tender Offers
Any person or entity, with the exception of the offeror, that increases its holding of shares on its own or acting in concert to 2% or more of the share capital of the target company after the beginning of an offer period109 or, to the extent applicable, the beginning of a pre-offer period, is required to report the objectives that it intends to pursue with regard to the ongoing offer to the AMF immediately. As soon as these objectives change, a new report must be filed with the AMF. This reporting obligation also applies to any securities (other than shares) which are subject to the offer.110 The report must indicate: (i) whether the reporting person is acting alone or in concert with others; (ii) the objectives of the reporting person with regard to the offer, especially if it intends to continue making acquisitions; and (iii) if an offer has been filed, whether it intends to tender its securities into the offer. The AMF may request from the reporting person any detail or further information deemed necessary.111
9. Mandatory Tender Offer Rules
9.1. Mandatory Tender Offer Regime
EU law affords protection to minority shareholders by imposing a duty to launch a mandatory tender offer at an "equitable price" for all securities upon a change in control of an issuer. Instead of permitting market participants, stock exchange regulators, or courts to determine on a case-by-case basis whether a potential shift in corporate control has occurred, the Takeover Directive created a bright-line rule for control based on a set percentage of voting rights.112 The EU Member State where the target company has its registered office is free to determine the control threshold that triggers the mandatory tender offer and the methods for calculating it.113
Until the 2010 Reform Act, this threshold was set by the AMF General Regulations at one-third of an issuer's equity securities or voting rights for issuers that have their registered office in France, which corresponds to the percentage of voting rights that permits shareholders to form a blocking minority during extraordinary shareholders meetings.114 In light of relatively low attendance rates at shareholders meetings and the fragmented nature of share ownership in France, the Field Report highlighted the need to decrease this threshold to the percentage of votes required to exercise de facto control.115 In line with rules prevailing in other EU jurisdictions, such as Germany, Austria, Belgium, Spain, Ireland, the Netherlands and the United Kingdom, this threshold will be set at 30% of an issuer's equity securities or voting rights as of February 1, 2011 (the "30% Test").
The 2010 Reform Act further expands the 30% Test by imposing a duty to launch a mandatory tender offer on a shareholder who comes to hold indirectly over 30% of an issuer's equity securities or voting rights. The AMF General Regulations previously imposed a similar requirement upon a change in control of a parent company (whether by merger, acquisition or through a contribution of assets) which held over one-third of the equity securities or voting rights of an issuer deemed to be an "essential part of the assets" of the parent company.116 Under the 2010 Proposed Rules, the AMF proposes to maintain this last condition by creating a new ground for waiver if the shareholder can demonstrate to the AMF that the issuer is neither quantitatively nor qualitatively an "essential asset"117 of the parent company.
If (i) a French target company holds 30% of the equity securities or voting rights of a French or foreign subsidiary publicly traded either on a regulated stock exchange in the EEA or on an "equivalent foreign market" and (ii) such subsidiary is an "essential asset" of the French target company, the bidder will be required to make an irrevocable and bona fide tender offer for the shares of that subsidiary no later than the opening of the first tender offer.118 Applying a lower control threshold to foreign targets could materially complicate and increase the price of an offer by forcing bidders to simultaneously acquire multiple listed entities, even though an issuer listed in a foreign jurisdiction may not in fact be controlled with 30% of voting rights by the primary French target. This rule was initially adopted as part of the "Nissan Amendment," which arose from the fact that, pursuant to these provisions, a bid for the French car manufacturer Renault would require a simultaneous bid for the Japanese-listed company Nissan, 44.4% of the shares of which were held by Renault at the time. The AMF applied this rule in 2007 to the attempted takeover of Eiffage by Sacyr by requiring a simultaneous bid for the French-listed toll road operator APRR, 41.2% of the shares of which were held indirectly by Eiffage at the time.119 In so doing, the AMF rejected Eiffage's arguments that this rule should apply only to subsidiaries held directly by the target company.
The 2010 Reform Act also updates the other tests giving rise to mandatory tender offers so as to align them with the 30% Test. A bidder, acting alone or in concert with others, will be required to launch a mandatory tender offer if it holds, directly or indirectly, from 30% to 50% of the equity securities or voting rights of a company and, within 12 consecutive months, increases its holding of equity securities or voting rights by at least 2% (the "2% Speed Limit Test").120
9.2. Aggregation Principles
The 2010 Reform Act aligns mandatory tender offer aggregation principles with those applicable to Statutory Disclosure Thresholds (as described under Section 4.1 above).121 The 2010 Reform Act's legislative history makes clear that the government had initially planned to exclude certain categories of equity securities or voting rights from aggregation, as the statutory objectives underlying mandatory tender offers were not identical to those relating to Statutory Disclosure Thresholds.122 However, the French Parliament elected to fully align both regimes. The AMF was empowered to establish a list of derivative instruments or contracts subject to aggregation, to the extent that they give to a derivative holder the right to acquire, at the holder's sole discretion, at any time on or before their maturity, shares or voting rights that have already been issued.123 On December 3, 2010, the AMF proposed fully aligning the list of these derivative instruments or contracts with that applicable to Statutory Disclosure Thresholds. Specifically, the 2010 Proposed Rules provide a non-exhaustive list of derivative instruments subject to aggregation:
certain types of convertible bonds that by contract are exchangeable for existing shares at the sole discretion of the bondholder (obligations échangeables en actions);
futures contracts; and
options (including American Options and European Options), whether or not such options are in or out of the money.
According to the AMF, non-standardized derivative contracts traded over the counter may also be subject to aggregation by analogy with financial instruments if they give to one of the counterparties to the contract the right to acquire, at his or her sole discretion, at any time on or before the contract's maturity, shares or voting rights that have already been issued.124
9.3. The Equitable Price
Under the Takeover Directive, the "equitable price" at which a mandatory tender offer must be made is defined as "the highest price paid for the same securities by the offeror, or by persons acting in concert with him/her, over a period, to be determined by Member States, of not less than 6 months and not more than 12 before the bid."125 Under French law, the offer price had to be at least equivalent to the highest price paid by the offeror, acting alone or in concert with others, within the 12-month period ending with the filing of the draft offer statement. The AMF suggested revising this rule after noticing that a number of offerors deliberately postponed the filing of draft offer statements to avoid taking into consideration share purchases that occurred within the 12-month period ending with the event triggering the filing of the draft tender offer statement and the actual filing of the draft tender offer statement.126 To address this issue, the 2010 Reform Act now mandates that the offer price be at least equal to the highest price paid by the offeror, acting alone or in concert with others, within the 12-month period ending with the event triggering the filing of the draft tender offer statement.127 According to legislative history,128 the definitional change of "equivalent" to "equal" is meant to track more closely the wording of Article 5 of the Takeover Directive, rather than to effect any substantive change in the definition.
Under the Takeover Directive, Member States may authorize their regulatory authorities to adjust the tender offer price in circumstances and in accordance with criteria that are clearly determined.129 To that end, the AMF was given the power to establish a list of circumstances in which the tender offer price may be adjusted either upwards or downwards. The AMF has thus determined that an adjustment in the price will be required if warranted by a manifest change in the characteristics of the target company or in the market for its securities and, specifically, (i) where events likely to materially affect the value of the securities occurred within the 12-month period ending with the event triggering the filing of the tender offer statement; (ii) where an issuer is facing recognized financial difficulties; or (iii) if the highest price was set by agreement between the purchaser and a seller as part of a transaction involving consideration other than the price for which the relevant securities were acquired (complex consideration).130 With the AMF's approval, the tender offer price is then based on objective valuation criteria generally used in financial analysis, the characteristics of the target company and the market for its securities.131 This same rule applies if the offeror, acting alone or in concert with others, has not acquired any securities of the issuer within the 12-month period ending with the filing of the draft offer statement.
9.4. Exemptions
The AMF may exempt from the requirement to file a mandatory tender offer shareholders who come to hold equity securities or voting rights in excess of the 30% Test as a result of their having declared themselves to be acting in concert with shareholders who already held, alone or in concert, the majority of a company's equity securities or voting rights, for as long as the latter shareholders remain "predominant." The shareholders continue to qualify for this exemption for as long as the balance of power among them does not materially change relative to the situation prevailing at the time of the initial disclosure. In 2009, Dassault Aviation filed a request for this exemption after entering into a shareholders agreement with the French State, which conditioned the acquisition by Dassault Aviation of Alcatel-Lucents' stake in Thales. Following this transaction, Dassault Aviation and the French State held together over 53% of the equity securities and 61% of the voting rights in Thales. The AMF granted the exemption on the ground that the shareholders agreement between the French State and Dassault Aviation was virtually identical to the previous agreement between the French State and Alcatel-Lucent, and that the French government maintained a "predominant" position over Dassault Aviation.
Under the 2010 Proposed Rules, the AMF proposes to extend this exemption to shareholders who come to control a parent company, which holds indirectly over 30% of the equity securities or voting rights of an issuer, constituting an essential asset of the parent company, if one or several of these shareholders already controlled the parent company and maintain a "predominant" position over the parent company.132
The AMF may also exempt shareholders who come to hold equity securities or voting rights in excess of the 2% Speed Limit Test as a result of their having declared themselves to be acting in concert with shareholder(s) who already hold, alone or in concert, from 30% to 50% of a company's equity securities or voting rights, if the latter maintain a higher proportion of equity securities or voting rights and the former do not independently exceed the 30% Test or the 2% Speed Limit Test.
Finally, in light of the new aggregation requirements created by the 2010 Reform Act (as discussed under Section 9.2 above), the AMF proposes in the 2010 Proposed Rules to exempt from the requirement to file a mandatory tender offer shareholders who come to hold equity securities or voting rights in excess of the relevant thresholds as part of a transaction that does not purport to effect a change in control (or an increase in control, in the case of the 2% Speed Limit Test) and lasts no longer than six months. The shareholder must commit not to exercise the voting rights in excess of these thresholds. Any exemption granted by the AMF is made public by the AMF. While on the one hand, the 2010 Proposed Rules expand the previous rule, which did not exempt mandatory tender offer filings premised on the 2% Speed Limit Test and was limited to shareholders who came to hold equity securities or voting rights in excess of less than 3% of the relevant thresholds, on the other hand, the 2010 Proposed Rules restrict the previous rule by requiring that the acquisition be part of a transaction that does not purport to effect a change in control.
9.5. Waivers
The AMF may also waive the obligation to file a mandatory offer if the reporting person can demonstrate that the relevant threshold was crossed as the result of any of the circumstances specified below:133
transfer by way of gift between individuals or distribution of assets by a legal entity in proportion to the rights of its shareholders;
subscription to a capital increase subject to shareholder approval by an issuer in recognized financial difficulty;
merger or asset contribution subject to shareholder approval;
merger or asset contribution subject to shareholder approval, combined with an agreement between shareholders of the companies involved giving rise to concerted action;
decrease in the total number of outstanding equity securities or voting rights in the issuer;
holding of a majority of an issuer's voting rights by a shareholder or by a third party, acting alone or in concert with others; and
resale (reclassement) or other comparable disposal of equity securities or voting rights between companies or persons belonging to the same corporate group.134
As discussed above, the 2010 Proposed Rules would create a new ground for waiver if a reporting person can demonstrate that an issuer does not constitute an "essential asset" of a parent company subject to a change in control.135
The AMF makes its determination after examining (i) the circumstances that led or will lead to the triggering of the thresholds; (ii) the structure of ownership of the equity and voting rights; and, (iii) where applicable, the conditions under which the transaction was approved by shareholders.136
10. Sanctions
10.1.Sanctions Relating to Disclosure Obligations
Failure to comply with disclosure obligations can result in civil, administrative, and criminal sanctions.
Failure to comply with statutory disclosure requirements results automatically in the exclusion of the investor's voting rights in excess of the relevant threshold for a two-year period following the date of rectification of the notification. In addition, the issuer, its shareholders, or the AMF may request a French commercial court to exclude all or part of the non-complying investor's voting rights for a period of up to five years.137
The AMF may also impose monetary sanctions. In setting past sanctions, the AMF has considered, among other circumstances, the following aggravating factors: the number or the repeated nature of the violations; the market impact of the violation; the extent of the harm suffered by shareholders and the gains realized by the respondent from the violation. The AMF has also considered the following mitigating circumstances: the personal or financial situation of the respondent; the experience of the respondent; and the efforts made by the respondent to address the violation (e.g., measures taken to prevent further violations).
AMF sanctions have historically been relatively modest. For instance, the AMF imposed in 2006 a €30,000 fine on a management company (Jousse Morillon Investissement) for knowingly failing to disclose within the five-trading-day limit, a 5% stake by one of its managed funds in an issuer listed on Euronext. The AMF based the sanction on the fact that the management company had acted with scienter by deliberately postponing the disclosure of the 5% threshold for several months until such time that it had accumulated 9.9975% of the share capital of the issuer (which incidentally was the target of an ongoing takeover bid).138 The AMF has since started imposing more substantial fines, such as those imposed on Sacyr and its Chairman for failure to disclose Statutory Disclosure Thresholds (as discussed further under Section 10.2 below). Furthermore, the 2010 Reform Act increased the maximum penalty that may be imposed by the AMF from €1.5 million to €100 million or ten times any profits made.139
The investor may also be subject to a criminal fine of up to €18,000.140
Failure to comply with disclosure requirements established in company bylaws may result in the exclusion of voting rights. However, in contrast to the statutory notification rules, this sanction is not automatic: the bylaws must expressly state that such a sanction will be imposed, and the imposition of the sanction must be requested at the general meeting of the shareholders. The request must be made by one or more shareholders holding, cumulatively, at least the minimum percentage of shares required for reporting under the notification provisions of the bylaws.141
As in the case of Statutory Disclosure Thresholds, the company, its shareholders or the AMF may petition a French commercial court to exclude all or part of a non-complying shareholder's voting rights for a period of up to five years.142 The Commercial Code may be construed as imposing a criminal fine for violations of bylaw notification requirements, but this has not yet been the subject of any case law.143
Failure to comply with declaration of intent requirements may be punished both by an administrative fine imposed by the AMF of up to €100 million or ten times any profits made,144 and by civil sanctions, including an exclusion of the investor's voting rights in excess of the relevant threshold, effective for a two-year period following the date of rectification of the notification.145 The company, its shareholders or the AMF may request a French court to exclude all or part of the non-complying investor's voting rights for a period up to five years.146 A criminal fine of up to €18,000 may also be imposed.147
10.2. Sanctions Relating to Mandatory Tender Offer Rules
Failure to comply with mandatory tender offer rules based on the 30% Test results in the automatic exclusion of all voting rights in excess of 30%. Under the 2010 Reform Act, the sanction applicable to breaches of the 2% Speed Limit Test is the automatic exclusion of all voting rights in excess of the investor's holding increased by 2%.148
The AMF has taken the view that the duty to launch a mandatory tender offer terminates upon the disposal of all shares and voting rights in excess of relevant thresholds. However, this does not cure violations of corresponding Statutory Disclosure Thresholds that may still give rise to monetary sanctions. Following the Paris Court of Appeals' ruling in the Eiffage/Sacyr matter discussed under Section 4.2 above, the AMF took note of the fact that all voting rights held by Sacyr and its group in excess of relevant thresholds had been excluded at Eiffage shareholder meetings. Nonetheless, the AMF ruled that Sacyr was no longer compelled to launch a mandatory tender offer since Sacyr and its group had since sold all securities they had acquired in Eiffage.149 Following the public outcry that ensued, the AMF imposed, on February 25, 2010, a €300,000 fine on Sacyr and a €100,000 fine on its Chairman for failure to disclose relevant Statutory Disclosure Thresholds.150
Footnotes
92 AMF General Regulations, Art. 233-7(V)(1) and 223-13(II)(1). A market maker must notify the AMF, within five trading days, of its intent to make a market for a given issuer. It must also notify the AMF within the same period when it stops making a market for the issuer. This notification must be made using a standard form defined by an AMF Instruction. A market maker must submit to the AMF, at its request: (i) means of identifying the equities or financial instruments concerned (the market maker must register them in a separate account, if it cannot identify them by any other means); and (ii) where applicable, any agreements between the market maker and the market undertaking or the issuer (AMF General Regulations, Art. 223-13(III) and (IV)).
93 Within the meaning of Directive 2006/49/EC of June 14, 2006 on the capital adequacy of investment firms and credit institutions.
94 AMF General Regulations, Art. 233-7(IV)(3) and Art. 223-13(I)(2).
95 Within the meaning of Directive 2006/49/EC of June 14, 2006 on the capital adequacy of investment firms and credit institutions.
96 According to the synthesis of public comments on the proposed amendments published by the AMF on July 20, 2009.
97 AMF General Regulations, Art. 223-13(I)(2), last paragraph.
98 AMF General Regulations, Art. 223-6 (and 223-34 §1).
99 AMF General Regulations, Art. 223-32; French Monetary and Financial Code, Art. L.433-1(V).
100 AMF General Regulations, Art. 223-35. The six-month period of ineligibility may be waived if the offeror demonstrates that significant changes to the target's business environment, situation, or ownership have occurred.
101 AMF General Regulations, Art. 223-33.
102 AMF General Regulations, Art. 223-33, last paragraph.
103 See for instance AMF press release of January 3, 2007 regarding Artemis and Suez. In late 2006, the shares of Suez, a large French utility company, experienced significant price volatility. Simultaneously, the financial press began to report speculation that Artemis, the holding company controlled by François Pinault, might soon launch a tender offer bid for Suez. In early January 2007, the AMF demanded that Artemis clarify its intentions with regard to the launch of a tender offer. Artemis' response to the AMF's formal request was considered by some as deliberately ambiguous. The statement filed with the AMF states that, "Artemis confirms that as of this date no decision concerning the possibility of an offer concerning the shares of Suez has been taken, and that all options remain open." The AMF considered that "by indicating that all options remain open, and by confirming ... the existence, even very preliminary, of a plan concerning the Suez Group," Artemis had responded affirmatively to the AMF's question as to whether it intended to launch an offer. The AMF therefore held that Artemis would be required to file an offer within a time period fixed by the AMF or be barred for six months from launching a bid. On January 9, 2007, the AMF fixed February 2, 2007 as the deadline for Artemis to either file a tender offer for Suez or to publish details of its offer. On January 19, 2007, Artemis published a second press release in which it stated that "current conditions do not create a sufficiently tranquil environment for an offer," although it would "continue to consider the possibility of such an operation." The AMF determined that this statement was sufficiently clear to be deemed a definitive statement of Artemis' intention not to launch a bid, and ruled that Artemis would therefore be barred from a bid for Suez during the six months following the announcement.
104 As promulgated by Ministerial Order (Arrêté) of July 10, 2009 concerning the approval of the AMF General Regulations (JORF of July 31, 2009, text N 10). On April 10, 2008, proposed amendments to the AMF General Regulations were publicly released and subject to public comments until May 16, 2008. On August 11, 2008, the AMF published a synthesis of public comments received from five market participants on the proposed amendments.
105 Transparency Directive, Recital 18.
106 AMF General Regulations, Art. 231-46.
107 Id.
108 In parallel, the AMF amended Instruction 2006-07 of July 25, 2006 on takeover bids and published a new Instruction No 2009-08 of September 22, 2009 indicating which reporting schedules must be used for trades made during an offer period.
109 The publication of the "avis de dépôt" marks the beginning of the "offer period" (période d'offre), which ends when the results of the offer are published (avis de résultat).
110 AMF General Regulations, Art. 231-47.
111 Id.
112 Art. 5(1) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (the "Takeover Directive").
113 Takeover Directive, Art. 5(3).
114 Pursuant to Art. L.225-96 of the French Commercial Code, resolutions at extraordinary shareholders meetings must be adopted by at least two-thirds of the votes present or represented at the meeting.
115 Field Report, p. 22-29.
116 AMF General Regulations, Art. 231-43, as in effect until February 1, 2011.
117 According to the notes to Article 234-9 of the 2010 Proposed Rules, the definitional change of "essential part of the assets" to "essential asset" is merely meant to harmonize this definition with the exact wording of the statute used in the Nissan amendment (as discussed below), rather than to effect any substantive change in the definition
118 French Monetary and Financial Code, Art. L.433-3 (IV); AMF General Regulations, Art. 234-3.
119 AMF Decision No 207C1202, 26 June 2007 (Eiffage).
120 French Monetary and Financial Code, Art. L.433-3 (I).
121 French Monetary and Financial Code, Art. L.433-3 (I), par. 2.
122 These included (i) shares or voting rights that have already been issued which such investor (or any other entity with whom aggregation is required) has the right to acquire, at the investor's sole discretion, at any time on or before their maturity, pursuant to any agreement or financial instrument; (ii) shares or voting rights held by a third party under an agreement entered into with the investor providing for the temporary transfer of the shares or voting rights in question; and (iii) shares in which the investor has a life interest.
123 French Monetary and Financial Code, Art. L.433-3 (I), par. 2.
124 AMF Public Consultation with respect to draft AMF General Regulations on tender offers released December 3, 2010, Note to Article 234-1. p 66.
125 Takeover Directive, Art 5(4).
126 See AMF Decision n°209C0559, 22 April 2009 regarding the determination of purchase price for the acquisition of Gecimed by Gecina.
127 French Monetary and Financial Code, Art. L.433-3 (I), par.2.
128 Report on the draft to the 2010 Reform Act dated September 14, 2010 by Philippe Marini to the Senate Finance Commission.
129 Takeover Directive, Art 5(4).
130 AMF General Regulations, Art. 234-6.
131 Id.
132 AMF General Regulations, Art. 234-7, 3.
133 French Monetary and Financial Code, Art. L.433-3 (I), par.4.
134 AMF General Regulations, Art. 234-9.
135 AMF General Regulations, Art. 234-9, paragraphs 8 and 9.
136 AMF General Regulations, Art. 234-8.
137 French Commercial Code, Art. L.233-14.
138 AMF Decision dated November 9, 2006, Société Jousse Morillon Investissement). This sanction was administrative in nature as it was based on the breach by a management company (under the jurisdiction of the AMF) of its "professional obligations imposed by applicable laws, regulations and professional rules of conduct." In such circumstances, the AMF could also have imposed the following range of sanctions: warning, reprimand, to bar them temporarily or permanently from their trade, and/or a fine of up to €1.5 million or ten times the amount of profits realized.
139 French Monetary and Financial Code, Art. L621-15(III)(c).
140 French Commercial Code, Art. L.247-2, I.
141 French Commercial Code, Art. L.233-7, VI.
142 French Commercial Code, Art. L.233-14.
143 French Commercial Code, Art. L.247-2, I.
144 French Monetary and Financial Code, Art. L.621-14 et seq.
145 French Commercial Code, Art. L.233-14, par.3.
146 French Commercial Code, Art. L.233-14, par.4.
147 French Commercial Code, Art. L.247-2, I.
148 French Monetary and Financial Code, Art. L.433-3 (I), Par.1.
149 AMF Decision No 208CO741, 21 April 2008.
150 AMF Sanction of February 25, 2010 with respect to Mr. Luis Fernando del Rivero Asencio and Sacyr Vallehermoso SA.
