Continuing obligations of stock exchange listed companies
1/36 Continuing obligations of stock exchange listed companies NOVEMBER 2008
705690 2/36 Continuing obligations of stock exchange listed companies (Continuing Obligations) TABLE OF CONTENTS . . FEIL! BOKMERKE ER IKKE DEFINERT. 1 GENERAL ___ 5
1.1 INTRODUCTION ___ 5
1.2 SCOPE ___ 5
1.3 CLASSIFICATION OF COMPANIES ETC ___ 5
2 GENERAL PROVISIONS ___ 6
2.1 EQUAL TREATMENT ___ 6
2.2 GOOD STOCK EXCHANGE PRACTICE ___ 6
2.3 COMPLIANCE WITH THE TERMS AND CONDITIONS FOR ADMISSION TO LISTING ___ 6
2.4 MINIMUM MARKET VALUE REQUIREMENT ___ 6
2.5 CONTACT PERSONS ___ 6
2.6 INFORMATION TO BE PROVIDED TO OSLO BØRS ___ 6
2.7 COMMUNICATION WITH OSLO BØRS ___ 7
2.8 PUBLIC DISCLOSURE OF INFORMATION IN SPECIAL CIRCUMSTANCES ___ 7
3 CONTINUING DUTY OF DISCLOSURE ETC ___ 7
3.1 INSIDE INFORMATION ___ 7
3.1.1 The content of the duty to provide information ___ 7
3.1.2 Delayed publication ___ 8
3.1.3 Management of information prior to publication ___ 9
3.1.4 Duty of prior notice when publicly disclosing particularly price-sensitive events ___ 9
3.2 CORPORATE ACTIONS ETC ___ 10
3.3 TRANSACTIONS WITH CLOSE ASSOCIATES ___ 11
3.4 DETAILED STOCK EXCHANGE ANNOUNCEMENT ___ 11
3.4.1 When the duty of disclosure is incurred ___ 11
3.4.2 The content of the announcement ___ 11
3.4.3 Timing of the announcement ___ 12
3.5 INFORMATION DOCUMENT ___ 13
3.5.1 When the duty of disclosure is incurred ___ 13
3.5.2 The content of the information document ___ 14
3.5.3 Particular requirements in connection with specific types of transactions ___ 17
3.5.4 Timing of publication ___ 17
3.5.5 Review and format of the information document ___ 18
3.5.6 Relation to the duty to prepare a prospectus ___ 19
3.6 ANNUAL OVERVIEW ___ 19
3.7 NOTICES TO SHAREHOLDERS ___ 20
4 FINANCIAL REPORTING ___ 20
4.1 MANAGEMENT OF INFORMATION PRIOR TO PUBLICATION ___ 20
4.2 DUTY TO PUBLISH ANNUAL REPORTS, HALF-YEARLY INTERIM REPORTS AND QUARTERLY INTERIM REPORTS ___ 20
4.3 PUBLIC DISCLOSURE OF INTERIM REPORTS ___ 20
4.4 PUBLIC DISCLOSURE OF THE ANNUAL REPORT ___ 20
4.5 FINANCIAL CALENDAR ___ 20
5 PROCEDURES FOR PUBLISHING AND FILING INFORMATION ___ 21
5.1 PUBLIC DISCLOSURE ___ 21
5.2 FILING ___ 22
5.3 LANGUAGE TO BE USED ___ 22
6 DUTY TO NOTIFY TRANSACTIONS IN THE COMPANY’S OWN SHARES ___ 22
6.1 DUTY OF NOTIFICATION ___ 22
6.2 DUTY TO DISCLOSE LARGE SHAREHOLDINGS ___ 22
7 CORPORATE GOVERNANCE REPORT .
705690 3/36 8 PROSPECTUS ___ 22
8.1 DUTY TO PREPARE A PROSPECTUS ___ 22
8.2 REVIEW AND APPROVAL OF AN EEA PROSPECTUS ETC ___ 23
8.3 TIMETABLE FOR APPROVAL ___ 23
8.4 NOTICE OF PUBLICATION ___ 23
9 TAKEOVER BIDS ___ 23
10 THE GENERAL MEETING OF THE COMPANY ETC ___ 24
10.1 GENERAL ___ 24
10.2 COMMUNICATION WITH SHAREHOLDERS ___ 24
10.3 NOTICE TO CALL A GENERAL MEETING ___ 24
10.4 THE RIGHT OF OSLO BØRS TO ATTEND THE GENERAL MEETING ___ 24
10.5 REPORT OF THE GENERAL MEETING ___ 24
11 CARRYING OUT CORPORATE ACTIONS ___ 24
11.1 GENERAL ___ 24
11.2 MERGER, DEMERGER AND REDUCTION IN SHARE CAPITAL THROUGH DISTRIBUTION ___ 25
11.3 CORPORATE ACTIONS THAT CONFER RIGHTS OF COMMERCIAL VALUE ___ 25
11.4 SHARE CAPITAL INCREASE IN A CLASS OF SHARES THAT IS LISTED ___ 25
12 CONTINUATION OF A STOCK EXCHANGE LISTING IN THE EVENT OF MERGER, DEMERGER AND OTHER MATERIAL CHANGES ___ 26
12.1 MERGER ___ 26
12.2 DEMERGER ETC ___ 27
12.3 OTHER CHANGES TO THE COMPANY ___ 27
13 FOREIGN COMPANIES AND NORWEGIAN COMPANIES WITH A SECONDARY LISTING ___ 27
13.1 GENERAL ___ 27
13.2 PRIMARY LISTED COMPANIES ___ 27
13.2.1 Companies for which Norway is the home state ___ 27
13.2.2 Companies for which Norway is the host state ___ 28
13.3 SECONDARY LISTED COMPANIES ___ 28
13.3.1 Norwegian companies ___ 28
13.3.2 Foreign companies for which Norway is the home state ___ 29
13.3.3 Companies for which Norway is the host state ___ 29
13.4 PARTICULAR REQUIREMENTS RELATED TO CORPORATE ACTIONS ___ 30
14 PRICE QUOTATION ___ 31
14.1 NOREX MEMBER RULES ___ 31
14.2 MATCHING HALT ___ 31
14.3 TRADING HALT ___ 31
14.4 SPECIAL OBSERVATION ___ 31
15 DELISTING AND SANCTIONS ___ 32
15.1 DELISTING ___ 32
15.2 TEMPORARY DELISTING ___ 32
15.3 DAILY FINE ___ 33
(4) IMPOSITION OF A DAILY FINE CONSTITUTES A BASIS FOR ENFORCEMENT BY DISTRAINT ___ 33
15.4 VIOLATION CHARGE FOR A COMPANY WITH STOCK EXCHANGE LISTED SHARES ___ 33
15.5 REPORTING TO KREDITTILSYNET ___ 34
15.6 MARKET SURVEILLANCE ___ 34
16 ADMINISTRATION BY OSLO BØRS ___ 34
17 STOCK EXCHANGE APPEALS COMMITTEE ___ 34
18 DUTY OF CONFIDENTIALITY AND ___ 35
19 FEES .
705690 4/36 20 COMING INTO FORCE AND TRANSITIONAL RULES ___ 35
21 CHANGES ___ 35
This document is a translation from the original Norwegian version. In the event of any discrepancies, the original Norwegian document will prevail.
705690 5/36 1 General 1.1 Introduction (1) These rules on the continuing obligations of stock exchange listed companies (Continuing Obligations) were approved by Oslo Børs ASA on 30 November 2005 and subsequently amended on 6 March 2007, 30 November 2007 and 3 October 2008. The Continuing Obligations are supplemented by the listing rules for shares (Listing Rules).
The rules are issued in accordance with Section 1, third paragraph, of the Stock Exchange Regulations1 . (2) The rules provide detailed provisions and clarifications in respect of the provisions of the Stock Exchange Act 2 , the Securities Trading Act,3 the Stock Exchange Regulations and the Securities Trading Regulations,4 as well as the Norex Member Rules as in force at any time. In the event of any conflict between the Oslo Børs rules and legislation or regulations, the legislation or regulations in question shall prevail.5 1.2 Scope (1) The Continuing Obligations apply to companies that have shares listed on Oslo Børs (stock exchange listed companies).6 The provisions apply to foreign companies and to Norwegian companies with a secondary listing subject to the exceptions and clarifications set out in section 13.
(2) The Continuing Obligations also apply to the extent applicable to issuers of primary capital certificates listed on the Primary Capital Certificate List. Provisions relating to the general meeting shall apply similarly to the committee of representatives. The reference to the general meeting in section 10.3 shall for this purpose mean the election meeting, and in section 10.4 the general meeting shall mean both the committee of representatives and the election meeting. (3) The Continuing Obligations also apply to the extent applicable to companies that have issued stock exchange listed subscription rights, including subscription rights to un-listed shares and primary capital certificates, as well as interim certificates and depository receipts.
(4) Except where otherwise stated, the provisions apply similarly to companies that have issued shares, subscription rights, interim certificates and depository receipts that are admitted to listing on Oslo Axess. References to the listing rules shall in respect of such companies be interpreted as references to the equivalent provisions in the Oslo Axess Listing Conditions. Oslo Axess is operated by Oslo Børs ASA. The roles and the authority assigned to Oslo Børs by the Continuing Obligations will also be exercised by Oslo Børs in respect of Oslo Axess. 1.3 Classification of companies etc.
(1) Stock exchange listed companies are classified by industry on the basis of the Global Industry Classification Standard (GICS). (2) Stock exchange listed shares are allocated to categories in accordance with the liquidity in the share, with a separate category for stock exchange listed primary capital certificates.7 Shares admitted to listing on Oslo Axess are not allocated to categories. (3) Stock exchange listed companies may, upon application, qualify for the Information Symbol if specific requirements for the extent and distribution of information are met. Companies that publish such information in English can also apply for the English Symbol.8 1 Regulation of 29 June 2007 No.
875. 2 Act of 29 June 2007 No. 74. 3 Act of 29 June 2007 No. 75. 4 Regulation of 29 June 2007 No. 876. 5 These rules lay down autonomous provisions for stock exchange listed companies, in addition to incorporating the most relevant provisions of legislation and legal regulations. The objective is to allow listed companies and other users to rely on one set of rules in their contacts with Oslo Børs. Where the rules incorporate the provisions of legislation and legal regulations, this is marked with footnotes. The rules also include commentaries providing guidance and interpretation in respect of certain of the provisions.
The commentaries largely reflect the contents of Circulars issued by Oslo Børs. In the event of any conflict, the provisions shall take precedence over the contents of the commentaries. Any subsequent material changes to the commentaries will be announced by means of Oslo Børs Circulars.
6 However, sections 3.1.1, 3.1.2 and 3.1.3 apply immediately from the time the application for admission to listing is submitted, cf. Listing Rules, Section 4. 7 Cf. Guidelines for liquidity categories on Oslo Børs, available on the Oslo Børs website.
705690 6/36 2 General provisions 2.1 Equal treatment9 (1) Stock exchange listed companies must treat holders of their shares on an equal basis. The company must not expose holders of its shares to differential treatment that lacks a factual basis in the common interest of the company and the shareholders.
(2) In connection with the trading or issuance of shares or rights to such shares, the company’s corporate bodies, elected officers or senior employees must not adopt measures which are likely to confer upon themselves, certain owners of shares or third parties an unreasonable advantage at the expense of other shareholders or the company. The same applies in respect of the trading or issuance of shares or rights to such shares within the group to which the company belongs. 2.2 Good stock exchange practice Stock exchange listed companies must observe good stock exchange practice.10 2.3 Compliance with the terms and conditions for admission to listing The company shall ensure that it complies at all times with the requirements of the Listing Rules in respect of its management and board composition, free transferability of its shares and voting rights, cf.
Listing Rules, Sections 2.3.5, 2.3.6, 2.4.4 and 18.104.22.168 Companies that were approved for admission to stock exchange listing before 1 January 2008 are subject to transitional rules for the provisions on the composition of the board of directors until 1 January 2011, cf. section 20, second and third paragraphs. However, Oslo Børs would encourage companies that do not satisfy the new requirements to take appropriate steps so as to satisfy the requirements that now apply regarding the composition of the board.
2.4 Minimum market value requirement The market value of the company’s shares shall not be lower than NOK 1. If the market value has been continuously lower than NOK 1 throughout a six-month period, the board shall implement measures to satisfy the requirement. 2.5 Contact persons The company shall at all times have two designated persons who can be contacted by Oslo Børs. The contact persons shall be contactable without undue delay. 2.6 Information to be provided to Oslo Børs (1) The company must immediately notify Oslo Børs of changes in the following matters, save to the extent that the company is already obligated to publish such information pursuant to section 3: 1.
The company’s contact details (postal address, visitor address, e-mail address, website and telephone number); 2. The international securities identification number (ISIN) used for the company’s shares by the Central Securities Depository; 3. The company’s listing or application for listing on any other regulated market; 4. Any ownership restrictions on the company’s shares arising as a matter of law, license terms or the company’s articles of association, together with information where appropriate on the proportion of the shares to which any such restriction applies; 5. The company’s contact persons, together with the e-mail addresses and telephone numbers of the contact persons; 6.
The company’s distributor for public disclosure of information. (2) If the company’s shares are no longer deemed to fulfil the conditions for admission to stock exchange listing, the company must notify this to Oslo Børs immediately. (3) If the company intends to amend its Articles of Association, it must submit the proposed changes to Kredittilsynet and Oslo Børs. Submission shall be by electronic means and shall take 8 See Guidelines for the Information Symbol and the English Symbol, available on the Oslo Børs website. 9 Cf. Securities Trading Act, Section 5-14. 10 See Stock Exchange Regulations, Section 14.
11 In the case of companies listed on Oslo Axess, the equivalent terms and conditions for admission to listing are stipulated in the Oslo Axess Listing Rules, Sections 2.3.1, 2.3.2, 2.4.4 and 2.4.5.
705690 7/36 place at the latest on the date of the notice convening the general meeting at which the proposal is to be considered.12 The duty to submit the proposed changes to Kredittilsynet is deemed to be satisfied by submitting the changes proposed to Oslo Børs. (4) Oslo Børs may demand that the company, the company’s elected officers and the company’s employees, must, without any restriction caused by a duty of confidentiality, provide Oslo Børs with all the information necessary for Oslo Børs to carry out its legal duties.13 Oslo Børs may demand an annual update of the information mentioned in the first paragraph etc.
(5) Any demands by Oslo Børs shall be made in writing and the reason for the demand shall be stated. In special circumstances, Oslo Børs may make demands orally. An oral demand shall be confirmed in writing as soon as possible.
(6) The company shall, without undue delay, send to Oslo Børs an updated overview of the company’s primary insiders as mentioned in Section 4-1, first paragraph of the Securities Trading Act. The notification shall include the name of each primary insider, together with his or her personal identity number or similar identification number, address, type of office or position in the company and any other employment positions.14 Oslo Børs takes the view that in order to satisfy the duty imposed in the third paragraph, the company must provide a draft of the Articles of Association in its entirety, cf.
Ot. prp. No. 34 (2006-2007) p. 342. 2.7 Communication with Oslo Børs All applications, requests, and other communications between the company and Oslo Børs in respect of permissions, approvals etc. must be submitted in writing. Oslo Børs shall deal with such communications without undue delay and communicate the result in writing.
2.8 Public disclosure of information in special circumstances If it is considered necessary in the interests of investors or the market, Oslo Børs can demand that the company shall publicly disclose specific information within such timetable as Oslo Børs may determine.15 3 Continuing duty of disclosure etc. 3.1 Inside information 3.1.1 The content of the duty to provide information (1) The company shall without delay and on its own initiative publicly disclose inside information that concerns the company directly, cf. Section 3-2, first to third paragraphs, of the Securities Trading Act.16 (2) Inside information shall mean any information of a precise nature relating to financial instruments, the issuer thereof or other circumstances which has not been made public and is not commonly known in the market and which is likely to have a significant effect on the price of those financial instruments or of related financial instruments.17 (3) Information shall be deemed to be of a precise nature if it indicates circumstances that exist or may reasonably be expected to come into existence or an event that has occurred or may reasonably be expected to occur and which is specific enough to enable a conclusion to be drawn as to the possible effect of those circumstances or that event on the price of the financial instruments or related financial instruments.18 (4) Information which would be likely to have a significant effect on the price of financial instruments or related financial instruments shall mean information of the kind which a reasonable investor would be likely to use as part of the basis of his investment decisions.19 12 Securities Trading Act, Section 5-8, sixth paragraph.
13 Stock Exchange Act, Section 24, seventh paragraph. 14 Securities Trading Act, Section 4-1, fourth paragraph. 15 Stock Exchange Regulations, Section 16. 16 Securities Trading Act, Section 5-2, first paragraph. 17 Securities Trading Act, Section 3-2, first paragraph. 18 Securities Trading Act, Section 3-2, second paragraph. 19 Securities Trading Act, Section 3-2, third paragraph.
705690 8/36 (5) Information such as is mentioned in the first paragraph shall be published in accordance with section 5. The information shall in addition be made available on the company’s website once publication has taken place.20 (6) The company must not combine the public disclosure of information as mentioned in the first paragraph with its marketing in a way that is liable to mislead.21 (7) Information that shall be notified or publicly disclosed as a result of admission to trading on other regulated markets shall be submitted to Oslo Børs in writing for public disclosure in accordance with section 5, at the latest when notification is sent to another regulated market or the information is publicly disclosed by other means.22 A more detailed account of the duty of disclosure is provided in the Appendix to Oslo Børs Circular No.
3/2005, Section 3.4.1 and Sections 3.4.4 to 3.4.6. The definition of inside information is discussed in Kredittilsynet Circular No. 14/2005.
The duty to publish information as soon as possible is assumed to apply only during exchange trading hours, cf. the duty to publish information “as soon as possible” imposed by Article 6(1) of the Market Abuse Directive. Where a company elects to publish such information outside exchange trading hours, it is subject to a duty to ensure broad distribution in accordance with the principles set out in section 5.1, second paragraph. The seventh paragraph corresponds with Section 5-2, fourth paragraph, of the Securities Trading Act. This provision does not appear to be fully consistent with the principles for public disclosure in Section 5-12 of the Securities Trading Act, cf.
section 5 (“forwarded to Oslo Børs in writing for public disclosure”). Oslo Børs takes the view that the duty imposed by paragraph 7 will be satisfied by public disclosure of the information in question in accordance with section 5, or alternatively in accordance with the equivalent provisions in the company’s home state, cf. section 13.2.2 eighth paragraph, and section 13.3.3 eighth paragraph. 3.1.2 Delayed publication (1) The company may delay the public disclosure of information mentioned in section 3.1.1, first paragraph, in order not to prejudice its legitimate interests, provided that such delay does not mislead the public and provided that the information is managed confidentially, cf.
section 22.214.171.124 (2) Legitimate interests as mentioned in the first paragraph may typically relate to: 1. Negotiations in course, or related elements, where the outcome or normal pattern of those negotiations would be likely to be affected by public disclosure. In particular, in the event that the financial viability of the company is in grave and imminent danger, although not within the scope of the applicable insolvency law, public disclosure of information may be delayed for a limited period where such a public disclosure would seriously jeopardise the interest of existing and potential shareholders by undermining the conclusion of specific negotiations designed to ensure the long-term financial recovery of the company.
2. Decisions taken or contracts made which need the approval of another body of the company in order to become effective due to the organisation of the company, provided that public disclosure of the pending decision or contract together with the simultaneous announcement that final approval is still pending would jeopardise the correct assessment of the information by the public.24 (3) The company must, on its own initiative, promptly notify Oslo Børs of any delay in disclosing information, including the background for the decision to delay publication.25 This duty of notification does not apply to the deferred publication of financial information in interim reports published in accordance with the company’s financial calendar, cf.
section 4.5. (4) If the company has reason to believe that information as mentioned in the first paragraph is known to or about to become known to unauthorised parties, the company shall without delay and on its own initiative publish the information in accordance with section 5.26 Delayed publication is discussed in greater detail in the appendix Oslo Børs Circular No. 3/2005, Section 3.6 20 Securities Trading Act, Section 5-2, second paragraph. 21 Securities Trading Act, Section 5-2, third paragraph. 22 Securities Trading Act, Section 5-2, fourth paragraph. 23 Securities Trading Act, Section 5-3, first paragraph.
24 Securities Trading Act, Section 5-3, second paragraph. 25 Securities Trading Regulations, Section 5-1. 26 Securities Trading Act, Section 5-3, fourth paragraph.
705690 9/36 Notification of a decision to delay publication as mentioned in the third paragraph must be given to the Listing Department of Oslo Børs, and can be given verbally. The basis for the exemption from the duty of disclosure in the third paragraph, second sentence, is that financial information will routinely represent notifiable inside information up to the time at which the board approves the interim report and it is publicly disclosed pursuant to section 4.3. Oslo Børs noted in its Circular No. 3/2005 at Section 3.4.5 that it must be assumed that the basic conditions for delayed publication are usually fulfilled in such circumstances.
The duty to notify Oslo Børs of a decision to delay publication was introduced for the purpose of the exchange’s surveillance of companies during periods when there exists pricesensitive information that has not been publicly disclosed. This purpose is not considered to justify a duty to notify delayed public disclosure of financial information prior to the publication of an interim report in accordance with the company’s financial calendar, cf. section 4.5.
However, it should be noted that this exception does not apply to specific occurrences that in their own right represent notifiable inside information in accordance with the general rules, and in such cases any decision to delay public disclosure - assuming that the conditions for such delay are satisfied - must be notified to Oslo Børs. 3.1.3 Management of information prior to publication (1) The company must not disclose inside information to unauthorised persons.27 (2) The company must handle inside information with due care so that the inside information does not come into the possession of unauthorised persons or is misused.28 (3) The company must have routines in place for secure handling of inside information.29 (4) The company must ensure that a list is maintained of everyone given access to inside information.
If access to inside information is given to a legal entity, the list must include those of the entity’s employees, elected officers, advisers etc. who are given access to the information.30 (5) The list must be kept up-to-date at all times, and must include information on: 1. the identity of persons with access to inside information, 2. the date and time the persons were given access to such information, 3. the persons’ office or employment, 4. the reason why the persons are included on the list, and 5. the date of entries and changes to the list.31 (6) The list must be securely stored for at least five years after its creation or updated, and shall be transmitted to Kredittilsynet upon request.32 (7) If Oslo Børs so requests, the company shall send a copy of the list to Oslo Børs without delay.33 (8) The company must ensure that persons given access to inside information are aware of the duties and responsibilities this involves, as well as the criminal liability associated with misuse or unwarranted distribution of such information.
The company must be able to satisfy to Kredittilsynet that persons with access to inside information are aware of their duties pursuant to the first sentence.34 A more detailed account of the duty of confidentiality and the duty to maintain lists can be found in Kredittilsynet Circular No. 14/2005.
3.1.4 Duty of prior notice when publicly disclosing particularly price-sensitive events If the company, at any time during the exchange’s opening hours, is to publicly disclose information on a take-over bid or a profit warning or other specific matters that must be assumed to have a significant effect on its share price, it must contact Oslo Børs prior to making such public disclosure. 27 Cf. Securities Trading Act, Section 3-4, first paragraph. 28 Cf. Securities Trading Act, Section 3-4, second paragraph, first sentence. 29 Cf. Securities Trading Act, Section 3-4, second paragraph, second sentence.
30 Securities Trading Act, Section 3-5, first paragraph. 31 Securities Trading Act, Section 3-5, second paragraph, first sentence. 32 Securities Trading Act, Section 3-5, second paragraph, second sentence. 33 Securities Trading Act, Section 5-3, third paragraph. 34 Securities Trading Act, Section 3-5, third paragraph.
705690 10/36 In view of the interests of investors, it is necessary for the company and Oslo Børs to collaborate on the publication of such price-sensitive information. Oslo Børs wishes to stress that the duty to give prior notice is separate and additional to the duty to notify Oslo Børs of a decision to delay publication pursuant to section 3.1.2, third paragraph. Announcements of profits warnings and takeover bids will always trigger a duty of prior notice, and the impact on prices typically associated with such announcements can provide guidance when evaluating what kind of other information which should also trigger this duty.
In other words, this duty does not apply to general announcements of a price-sensitive nature, but only to announcements of a particularly price-sensitive character, where the effect on the share price must be assumed to be so considerable that a matching halt should be considered in the best interest of the investor market.
For the sake of good order, it should be noted that the duty to give prior notice will not apply to interim reports except where these are assumed to be particularly price-sensitive in accordance with the criteria mentioned. However, Oslo Børs recommends that interim reports should be published outside the exchange’s opening hours. This means that internal processes in respect of the timing of approval of documents etc. should be adapted accordingly. Prior notice must be addressed to the Market Surveillance department at Oslo Børs, and such notice may be given verbally.
3.2 Corporate actions etc.
(1) The company must immediately publicly disclose: 1. Any changes in the rights attaching to the company’s shares, including any changes in related financial instruments issued by the company;35 2. The issue of new loans, including any guarantees or collateral provided in that connection.36 If the issue is in respect of a convertible or subordinated loan, this must be stated. Any issue of similar convertible rights must also be made public; 3. Proposals and decisions by the board of directors, general meeting or other corporate body on a. dividends; b. mergers; c. demergers; d. increases or decreases in share capital; and e.
mandates to increase the company’s share capital. Information on allocation and payment of dividends, as well on issuance of shares, including information on any arrangements for allotment, subscription, cancellation and conversion;37 4. Proposals and decisions on the issue of subscription rights; 5. In the event of the issue of a loan or an increase in share capital as mentioned in items 1, 2 and 3, information shall be given in particular on any underwriting consortium, including the members of the consortium and their guarantee obligations, as well as information on any advance subscription or allotment; 6.
Registered change of company name; 7. Registered change in the nominal value of the company’s shares. (2) Announcements about such proposals or decisions as mentioned shall include the information necessary to make it possible to calculate the effect of the action in question (amount of the dividend, number of bonus shares/subscription rights per share outstanding, payment date, etc.) including the date when the share will be traded excluding the rights. In the case of a private placement of shares and a subsequent public offer, information shall be given as to whether certain shares are entitled to participate in both issues.
(3) If the information must be assumed to be inside information pursuant to section 3.1.1, then section 3.1.2 shall apply similarly. (4) The company shall, at the latest at the end of each month in which a change in share capital or voting rights takes place, publicly disclose an overview of the share capital and the number of votes in the company.38 35 Securities Trading Act, Section 5-8, first paragraph. 36 Securities Trading Act, Section 5-8, fourth paragraph. 37 Securities Trading Act, Section 5-9, fifth paragraph. 38 Securities Trading Act, Section 5-8, second paragraph.
705690 11/36 Oslo Børs takes the view that the duty to publicly disclose the issue of a new loan as required by the first paragraph, item 2, only applies to debt instruments.
Other types of loans raised shall be publicly disclosed to the extent that this is considered to constitute notifiable inside information, cf. section 3.1. If the company publicly discloses information of the type mentioned in the fourth paragraph in connection with the registration of a share capital increase or similar, Oslo Børs takes the view that it is not a necessary to issue a new announcement of the same information at the end of the month.
3.3 Transactions with close associates (1) The company must as soon as possible publicly disclose transactions that are not immaterial between the company and shareholders, members of the board of directors, members of the executive management or the close associates of any such parties, or with another company in the same group. (2) If the information must be assumed to constitute inside information pursuant to section 3.1.1, then section 3.1.2 shall apply similarly. The first paragraph applies to transactions as defined in Section 4, fourth paragraph, of the Norwegian Code of Practice for Corporate Governance.
It should be noted that the duty to publicly disclose such transactions arises at the time the agreement is entered into, regardless of whether the agreement in question requires the approval of the general meeting pursuant to Section 3-8 of the Public Limited Liability Companies Act or the recommendation in the Code of Practice.
3.4 Detailed stock exchange announcement 3.4.1 When the duty of disclosure is incurred (1) If the company enters into an agreement for a transaction that represents a change of more than 5% in relation to the criteria mentioned in the third paragraph, the company must publicly disclose this information in accordance with section 3.4.2 and section 3.4.3. (2) A transaction shall mean an acquisition or disposal of a business or asset. This provision shall apply similarly to mergers and demergers as mentioned in section 3.5.3. (3) A transaction shall represent a change as mentioned in the first paragraph if it causes an increase or reduction of more than 5% in the company’s total assets, revenue or profit or loss.
If the transaction relates to assets or business activities that have not been subject to separate financial reporting, the calculation of whether the transaction exceeds 5% shall be based on the consideration paid or received for the asset or business activity and the book value of the company’s total assets before the acquisition or disposal.
(4) Oslo Børs may grant full or partial exemption from the duty of disclosure if the information that would otherwise be published is not expected to be of significance to an evaluation of the stock exchange listed shares, or if there are other special reasons. Oslo Børs reserves the right to require further information. It should be noted that the criteria set out in the third paragraph are alternative in the sense that the duty is triggered if the transaction represents a 5% change for any one of the criteria. The criteria are determined on the basis of the criteria that apply when calculating the 25% threshold for pro forma information in a prospectus, and in interpreting the criteria Oslo Børs may take into account how the criteria are interpreted in the prospectus rules, although it will not be bound by such comparisons.
In the case of transactions that involve an asset or business that has not been subject to separate financial reporting, the third paragraph, second sentence, stipulates a specific calculation method. For the sake of good order, it should be noted that this method applies only for the detailed announcement, and not for the information document, cf. section 3.5. Further guidance on the calculation of the 5% threshold can be found in the guidelines included in the commentary on the information document, cf. section 3.5.
If the company wishes to discuss the question of an exemption pursuant to the fourth paragraph, it must contact Oslo Børs well in advance of the time at which the duty of disclosure arises.
3.4.2 The content of the announcement (1) The announcement shall provide information on:
705690 12/36 1. The parties to the agreement and the transaction agreed (type of transaction, when the transaction will be carried out, any special conditions or terms, any licence issues etc.); 2. The consideration for the transaction, the form of settlement and financing, with information on the timetable for the transaction; 3. A description of the business to which the transaction applies, including information on its board of directors and executive management, the number of employees, key figures from the balance sheet and profit and loss account as well as information on any significant assets or liabilities that are not shown in the balance sheet of the business; 4.
The significance of the transaction for the company, including any strategic effects; 5. Any agreements entered into in connection with the transaction for the benefit of the company’s senior employees or members of the board of directors or for the senior employees or board of directors of the business in question. The information disclosed shall include both agreements already entered into and agreements the company expects to enter into.
(2) In the case of transactions that relate to assets or businesses that have not been subject to separate financial reporting, the first paragraph, item 3, shall apply to the extent applicable. Key figures for the business to which the transaction applies, cf. first paragraph, item 3, must be provided for the most recent accounting year and the two years prior to this. If interim reports have been published for the business in question, the information provided must also include key figures from any subsequent interim periods. It is sufficient to provide figures for the most recent interim period and year to date, together with comparable profit and loss figures for the same periods in the previous year.
The presentation must include key figures that give an overview of the financial condition of the business in question. In principle, this requirement can be satisfied by providing the key figures from the relevant profit and loss statement and balance sheet, but consideration should be given to which figures are required to give a satisfactory overview of the financial condition of the business in question. If the key figures provided are not taken directly from annual and/or interim reports issued by the business in question, the source of the figures must be stated. Definitions of key figures must be included if necessary in order to permit an understanding of how the figures are calculated or which items are included.
Information must be provided on the significance of the transaction for the company, cf. first paragraph, item 4. In addition to strategic effects such as opportunities for geographic expansion and additions to the product range, this may typically relate to the impact of the transaction on the company’s revenues and earnings. 3.4.3 Timing of the announcement (1) The announcement shall be issued as soon as possible after the agreement has been entered into, and in any case no later than prior to the start of stock exchange trading on the third trading day after the date the agreement is entered into.
(2) In the case of a merger or demerger, the agreement is deemed to be entered into at the time the merger plan/demerger plan is signed by the boards of directors of the companies involved in the merger/demerger. In the case of a public offer to acquire all the shares or other ownership interests in another business, the agreement is deemed to be entered into at the time the conditions of the offer are satisfied or waived. (3) Oslo Børs may in special circumstances agree to an extension of the deadline for the publication of some or all of the required information.
More detailed comments on the time at which an agreement is deemed to be entered into can be found in the commentary to section 3.5.4 The duty to publish a detailed stock exchange announcement applies to agreements entered into after the company’s shares have been admitted to listing.
If the company publishes an information document in respect of the same transaction within the three-day deadline, the company is not required to issue a detailed stock exchange announcement pursuant to section 3.4.
If a company wishes to discuss the question of an extension of the deadline pursuant to the third paragraph, it must contact Oslo Børs well in advance of the time at which the duty of disclosure arises. Oslo Børs will in general adopt a strict approach to agreeing such extensions.
705690 13/36 3.5 Information document 3.5.1 When the duty of disclosure is incurred (1) If the company enters into an agreement for a transaction that represents a change of more than 25% in relation to the criteria mentioned in the third paragraph, the company must publish an information document in accordance with sections 3.5.2 to 3.5.5.
In the case of companies listed on Oslo Axess, this duty arises if the transaction represents a change of more than 100% in relation to the same criteria. (2) Section 3.4.1, second and fourth paragraph, shall apply similarly. (3) For the purpose of calculating whether a transaction represents a change of more than 25%, the same criteria shall be used as when determining whether a prospectus must include pro forma information, cf. Article 4a(6) of the Commission Regulation (EC) No. 809/2004 (the “Commission Regulation”), cf. Annex I, item 20.2, and CESR’s recommendation on prospectuses39 , Part II, Chapter 6.
(4) The duty to prepare an information document shall also apply similarly to the extent applicable for transactions in respect of assets or businesses that have not been subject to separate financial reporting. In such cases, section 126.96.36.199, second paragraph, and section 188.8.131.52, first paragraph, item 2, shall not apply.
It is intended that the duty to produce an information document arises in respect of transactions that would have triggered the duty to include pro forma information in a prospectus. Article 4(a)(6) of the Commission Regulation was amended by Commission Regulation (EC) No. 1787/2006 (complex financial), but the provisions of this regulation have not been incorporated into the original Regulation. For companies listed on Oslo Axess the same criteria are to be applied, but the transaction must entail a change of more than 100% in order to trigger the duty to prepare an information document. In addition, the more detailed requirements for the presentation of pro forma information set out in the prospectus rules have been carried over to apply to the information document, cf.
section 184.108.40.206. However, it should be noted that a number of problematic issues in respect of the interpretation of the rules on the pro forma information to be included in a prospectus have not yet been resolved, and the question of whether a specific transaction requires the presentation of pro forma information can cause considerable doubt. The guidelines provided on the transactions that trigger the duty to prepare an information document are therefore subject to any different interpretations of the prospectus rules at the EU level. For the sake of good order, it should be noted that the timing of when the duty to publish an information document arises is not harmonised with the rules on the stage of the transaction which triggers the duty to publish pro forma information in a prospectus.
The latter question is further regulated in Article 4a(5) of the EU Commission Regulation (EC) No. 809/2004 as amended by EU Commission Regulation (EC) No. 211/2007. The interpretation of whether there is a “binding agreement”, and other cases where specific evaluation leads to the conclusion that pro forma information must be provided in a prospectus in accordance with these rules, will therefore not automatically decide whether an “agreement” has been entered into pursuant to section 3.5.4, first and second paragraph.Calculation of the 25% (100%) threshold Section 3.5.1 stipulates that the duty to publish an information document is triggered if the company enters into an agreement for a transaction that represents a change of more than 25% (100%) in relation to the criteria/indicators of size set out in Article 4a(6) of the Commission Regulation, cf. Annex I, item 20.2 and Part II, Chapter 6 of the CESR Recommendation. The indicators of size are:
- Total assets
- Profit or loss According to the CESR Recommendation, other indicators may be used if the specified indicators produce anomalous results or if they are unsuitable for the company’s industry. Oslo Børs reserves the right to decide whether and how such other indicators may be used.
39 CESR/05-054b. The CESR Recommendation is available at: http://www.oslobors.no/ob/prospectuses_information.
705690 14/36 It should be noted that these criteria are alternative in the sense that the threshold is triggered if the transaction represents a change of more than 25% (100%) for any one of the criteria. The calculation of whether a transaction represents such a change shall be carried out on the basis of the indicators of size in the company’s most recent published annual accounts, or alternatively the next annual accounts due to be published.40 The calculations are to be based on the values prior to the acquisition or disposal.
If the company has published an interim report since the most recent annual accounts, or has carried out a transaction presented by means of pro forma information in an information document, EEA prospectus or interim report, the calculation may, subject to approval from Oslo Børs, be based on the indicators of size taken from such published figures.41 If the business to be acquired or disposed of is a group, the consolidated accounts of the business shall be used. Similarly, if the company is a group, the company’s consolidated accounts shall be used. Businesses that have been the subject of separate financial reporting The calculation of the 25% (100%) threshold is based on the estimated change in the company’s accounts as a result of the transaction.
If the transaction involves a business that has been the subject of separate financial reporting, the calculation of the changes to the indicators operating revenue and annual profit of the company shall, to the greatest extent possible, be based on figures from the accounts of the business in question for the same accounting period as the accounting period used for the company’s figures. The calculation shall take into account any material adjustments for differences in accounting principles and other matters that impact the effect of the transaction on the company’s accounts. The calculation of the change in the indicator assets in the company’s accounts must take into account the overall effect the transaction will have on the company’s assets, including any excess value and goodwill.
If the transaction involves an acquisition or disposal of less than 100% of the shares or ownership interests of the business in question, the calculation of the effect on the company’s accounts should in general include the whole of the business in question, regardless of the proportion that the acquisition or disposal actually represents, assuming that the transaction will cause the business to be consolidated in the company’s accounts or cease to be included in its consolidated accounts.
In the case of transactions that involve an associated business or a jointly controlled business, the calculation of the change in the company’s accounts will depend on whether the transaction is accounted for by the equity method of accounting or the gross method of accounting.
Assets or businesses that have not been subject to separate financial reporting In the case of an acquisition or disposal of an asset or business that has not been subject to separate financial reporting, the principles set out above shall be applied to the extent applicable. Option agreements In the case of allotting, acquiring or issuing options or similar rights to acquire or dispose of business activities or assets, where the agreement is deemed to be entered into at the time the allotment, acquisition or issuance takes place, the threshold value will normally be calculated as if the option or right had been exercised.
Exemptions If a company wishes to discuss the question of an exemption pursuant to the second paragraph, cf. section 3.4.1, fourth paragraph, it must contact Oslo Børs well in advance of the time at which the duty of disclosure to prepare an information document arises.
3.5.2 The content of the information document 220.127.116.11 General requirements on content (1) The document must provide a clear and complete description of the company, drawing particular attention to its major characteristics and risk factors. In addition, the document must provide a description of the transaction and the business or asset that is the subject of the transaction. The document must provide a short account of the significance of the transaction for the company’s earnings, assets and liabilities. The information provided in the information document must be presented in a form that is easy to understand and analyse.
40 CESR 05-054b Section 94. 41 Further to the prospectus rules, CESR takes the view that the calculation should not be based on pro forma information in the prospectus, cf. CESR FAQ Q. 51. The CESR FAQs are available at http://www.oslobors.no/ob/prospectuses_information.
705690 15/36 (2) In addition to the requirements in the first paragraph, the information document must include information on the matters mentioned in sections 18.104.22.168 to 22.214.171.124 and section 3.5.3. If shares are issued as consideration, Oslo Børs assumes that the description of the transaction to be provided pursuant to the first paragraph, together with the information required by section 126.96.36.199, first paragraph, cf.
section 3.4.2, first paragraph, item 1, will satisfy the material requirements of Annex III, Section 5, of the Commission Regulation.
Information on the extent to which the transaction will affect the company’s assets, liabilities and profit or loss refers to a descriptive commentary that is to be provided in addition to the requirement for pro forma financial information. 188.8.131.52 Declaration by the board of directors The company’s board of directors must issue a declaration that satisfies the requirements set out in Annex I, item 1.2, of the Commission Regulation. It should be noted that this requirement applies regardless of whether the transaction in question triggers the duty to prepare a prospectus. The board’s declaration must be given in respect of the information that relates to the company.
In addition, the declaration should state the source for the information provided on the business that is the subject of the transaction.
184.108.40.206 Updated description of the company Information required pursuant to the following provisions of the Commission Regulation must be provided for the company as it will be following the implementation of the transaction: 1. Annex I, item 2.1, item 4, item 5.1.1, item 5.1.4, item 6, item 7.1, item 10.1, 10.3, 10.4, item 12, item 14.1 first section, item 16.2, item 16.4, item 17.2, item 18.1, item 20.8, item 20.9, item 21.1.7, item 22, item 23, item 24; 2. Annex III, item 2, item 3.1. In the case of an acquisition or similar transaction where it is considered to be impossible or inappropriate to produce a consolidated description in certain respects, Oslo Børs may consent to a separate description being provided for the purchaser and the business to be acquired.
220.127.116.11 Description of the business that is the subject of the transaction (1) The document must include the information specified in section 3.4.2, first paragraph, item 3. (2) Information required pursuant to the following provisions of the Commission Regulation must be provided for the business that is the subject of a transaction: 1. Annex I, item 4, item 5.1.1, item 5.1.4, item 12, item 20.8, item 20.9, item 22. (3) If the transaction relates to a business in one of the industries mentioned in Annex XIX of the Commission Regulation, then Chapter 1 of the “CESR Recommendation for the consistent interpretation of the European Commission’s Regulation on Prospectuses”42 shall apply similarly.The third paragraph refers to Annex XIX of the Commission Regulation, which provides a list of particular types of companies that may be subject to additional requirements for the information to be included in the prospectus. This includes i.a.:
- Property companies
- Mineral companies
- Scientific research based companies
- Companies with less than three years of operations (start-up companies)
- Shipping companies Items no. 128 to 145, of the CESR Recommendation sets out certain additional requirements for companies of the types mentioned. A central theme is the requirement to produce valuation reports. These provisions apply to the information document if the “transaction relates to a business in one of the industries mentioned in Annex XIX of the Commission Regulation”. The requirement for more detailed 42 CESR/05-054b. The CESR Recommendation is available at: http://www.oslobors.no/ob/prospectuses_information.