Key Benefits:
Minister of Economy, Finance and Industry,
Considering the monetary and financial code, including its article L. 621-6;
Having regard to the letters of the President of the Autorité des marchés financiers of 20 April 2006, 21 June 2006, 4 August 2006 and 6 September 2006,
Stop it!
The amendments to Books II and III of the General Regulations of the Autorité des marchés financiers annexed to this Order are approved.
This Order and the amendments to the general regulation of the Autorité des marchés financiers annexed to it will be published in the Official Journal of the French Republic.
A N N E X E
MODIFICATION OF LIVRES II AND III OF THE GLOBAL REGULATION
OF THE AUTHORITY OF FINANCIAL MARKES
The general regulation of the Autorité des marchés financiers is amended as follows:
I. - After section 211-2, an article 211-2-1 is inserted as follows:
“Article 211-2-1
"Any person or entity referred to in Article D. 411-1 of the monetary and financial code that requests its registration in the file provided for in Article D. 411-3 of the said code shall complete and address the form available to the AMF on its site with a photocopy of an identity document that is valid or certified to its professional registration. The AMF shall send to this person or entity an acknowledgement of receipt certifying its registration in the file.
"When a person or entity wishes to waive his or her status as a qualified investor, he or she fills and addresses the form available on his or her site with a photocopy of a valid identity document or the certificate of his or her professional registration. This person or entity loses his or her status as a qualified investor from the date of receipt of the AMF's acknowledgement of his or her deletion of the file.
"The file is not accessible by third parties. »
II. - After section 216-1, a chapter VII, its title and section 217-1 is inserted as follows:
“Chapter VII
"FAM designation as competent authority
for supply control
“Article 217-1
"A corporation referred to in Article L. 433-1 of the monetary and financial code that chooses the AMF as the competent authority for the control of a public procurement shall forward to the AMF, no later than the first day of admission of its securities to the negotiations on a regulated market, a declaration for the purpose of posting on its site.
"This statement takes the form of the type model defined by an AMF instruction. »
III. - Section 2 of Chapter II of Book II of the General Regulations of the AMF and sections 222-12 to 222-12-6 are as follows:
“Section 2
"Streaks, declarations of intent
and changes in intent
"Subsection 1
“Streaks of thresholds
“Article 222-12
"For the calculation of the thresholds of participation referred to in Article L. 233-7 of the Commercial Code, the person held in the information referred to in I of the said Article shall take into account the shares and voting rights held by the person and the shares and voting rights that are assimilated therein pursuant to Article L. 233-9 of the said Code, and determines the fraction of capital and the voting rights held therein by the total number of shares held on the
"The total number of voting rights is calculated on the basis of all actions to which voting rights are attached, including private voting shares.
“Article 222-12-1
"I. - Pursuant to 2° of Article L. 233-9 of the trade code, are not assimilated to shares or voting rights owned by the person held in the information provided in Article L. 233-7 of the said code, shares held in a portfolio managed by an investment service provider controlled by that person within the meaning of Article L. 233-3 of the code
“II. - The provisions of the I shall not apply where the management company or the investment service provider may exercise the voting rights only on direct or indirect instructions of the person held on the information referred to in I of Article L. 233-7 referred to above or any other person controlled by the latter within the meaning of Article L. 233-3 referred to above.
“Article 222-12-2
"I. - The information obligations set out in I, II and III of Article L. 233-7 of the Commercial Code do not apply in particular to actions:
« 1° Acquired for the sole purpose of compensation, regulation or delivery of financial instruments within the meaning of Book V title;
« 2° Detained by an investment service provider in its trading portfolio as defined in Council Directive 93/6/EC of 15 March 1993 on the adequacy of the equity of investment companies and credit institutions, provided that:
“(a) These shares represent a quotity of the capital or voting rights of the transmitter less than or equal to 5%;
“(b) The voting rights attached to these actions are not exercised or otherwise used to intervene in the management of the issuer;
« 3° Remittances to members of the European System of Central Banks or by them in the exercise of their functions as monetary authorities provided that:
“(a) These actions are delivered for a short period of time;
“(b) The voting rights attached to these actions are not exercised.
“II. - The information obligations set out in I, II and III of Article L. 233-7 of the Commercial Code do not apply to the market content when the threshold of the twentieth of capital or voting rights is crossed in the context of the market holding, provided that it does not intervene in the management of the issuer and does not exert any influence to induce the issuer to acquire or support the price.
“Article 222-12-3
"I. - Persons held on the information referred to in Article L. 233-7 of the Commercial Code shall inform the FMA no later than five days of negotiation from the crossing of the participation threshold.
“II. - The information referred to in I includes:
« 1° The identity of the declarant;
« 2° Where applicable, the identity of the natural or legal person authorized to exercise the voting rights on behalf of the declarant;
« 3° The date of the threshold of participation;
« 4° The origin of the threshold crossing;
« 5° The situation resulting from the operation in terms of shares and voting rights;
« 6° Where applicable, the nature of the assimilation to the shares or voting rights owned by the declarant pursuant to Article L. 233-9 of the Commercial Code and, where appropriate, the main characteristics of the agreement referred to in Article L. 233-9, paragraph 4, of the said Code;
« 7° Where applicable, all companies controlled within the meaning of Article L. 233-3 of the Commercial Code through which shares and voting rights are held;
« 8° The number of titles owned by the declarant giving full access to capital and the voting rights attached to it.
"III. - The information referred to in I is written in French or in another standard financial language.
"IV. - AMF may request companies whose headquarters is not located in France and whose shares are admitted to negotiations on a regulated market of equivalent information.
“Article 222-12-4
"The information referred to in section 222-12-3 is made available to the public by the AMF.
"Subsection 2
“Information relating to the total number
voting rights and shares of capital
“Article 222-12-5
"Societies whose shares are admitted to negotiations on a regulated market publish on their website and transmit to the AMF, at the end of each month, the total number of voting rights and the number of shares composing capital if they have varied from those previously published.
"The AMF can ask companies whose headquarters is not located in France and whose shares are admitted to negotiations on a regulated market of equivalent information.
"Subsection 3
" Declarations of Intent and Changes of Intent
“Article 222-12-6
"The information referred to in the VII of Article L. 233-7 of the Commercial Code is made available to the public by the AMF. An AMF instruction specifies the conditions under which this information is transmitted.
"The AMF can ask companies whose headquarters is not located in France and whose shares are admitted to negotiations on a regulated market of equivalent information. »
IV. - The title of chapter II, section 4, of title II of Book II is as follows:
“Section 4
"Operations of the leaders and persons referred to in Article L. 621-18-2 of the monetary and financial code on the securities of the corporation"
V. - The second paragraph of Article 222-14 is deleted.
VI. - The first paragraph of section 222-15 is as follows:
"By derogation from the provisions of Article 222-14, the transactions carried out by a person referred to in Article L. 621-18-2 of the monetary and financial code shall not be reported when the cumulative amount of the said transactions does not exceed 5,000 euros for the current calendar year. This amount is calculated by adding the transactions carried out by the persons referred to in (a) or (b) of Article L. 621-18-2 of the monetary and financial code and the transactions carried out on behalf of the persons referred to in (c) of that Article. »
VII. - The last paragraph of section 222-15-2 is as follows:
"The statement must be based on the model model defined in an AMF instruction. »
VIII. - After article 222-20, two sections are inserted, their title and articles 222-21 to 222-25 as follows:
“Section 6
"Information on restrictions on the exercise of voting rights
or transfer of securities
“Article 222-21
"I. - Any company whose registered office is located in France and whose shares are admitted to negotiations on a regulated French market or for which an application for admission to such a market has been submitted that decides to apply or terminate the application of the provisions set out in Articles L. 233-35 to L. 233-39 of the Commercial Code shall, as soon as the statutes are amended, transmit to the AMF all such amendments as
“II. - is also subject to the provisions of I:
« 1° Any company whose registered office is located in France and whose shares are admitted to negotiations on a regulated market of a Member State of the European Community or a party to the agreement on the European Economic Area, other than France, or for which a request for admission to negotiations on such a market has been submitted;
« 2° Any company whose registered office is located in a Member State of the European Community or a party to the agreement on the European Economic Area, other than France, and whose actions are admitted to negotiations on a regulated French market or for which a request for admission to negotiations on such a market has been submitted.
“Section 7
" Declaration of Intent in the event of preparatory acts for filing
a public procurement offer
“Article 222-22
"Without prejudice to the provisions of section 222-7, in particular where a issuer's financial instruments market is subject to significant variations in unusual prices or volumes, the AMF may request persons whose reasonable grounds exist to think that they prepare, alone or in concert within the meaning of section L. 233-10 of the Commercial Code, a public offer of acquisition, to inform, within a fixed period of time, that it This includes, in the event of discussions between the issuers concerned or the designation of advice, for the preparation of a public offer.
"The information is made available to the public by means of a statement submitted prior to the AMF's appreciation and whose author ensures the effective and integral dissemination.
“Article 222-23
"When the persons referred to in section 222-22 declare that they intend to file a proposed offer, the AMF sets out the date on which they are to issue a statement on the characteristics of the proposed offer or, as the case may be, file a proposed offer.
"The statement referred to in the first paragraph addresses, inter alia, the financial conditions of the proposed offer, the agreements that may have an impact on its implementation, the participation held in the issuer concerned, the possible preconditions for the filing of the proposed offer and the timetable envisaged.
"The AMF may request any information that it considers necessary.
"When the characteristics of the proposed offer have not been communicated or when a proposed offer has not been filed within the time limit referred to in the first paragraph, the persons concerned are deemed not to have the intention of filing a proposed offer and are subject to the provisions of section 222-25.
“Article 222-24
"Sections 10 and 11 of Chapter I of Title III of this book and the provisions relating to interventions in the securities market concerned by a public offer shall apply as soon as the declaration of intent referred to in section 222-23 is published. They cease to apply when the company announces that it has renounced its project or where a proposed offer has not been filed within the time limit referred to in section 222-23.
"The provisions of the first paragraph are also applicable between the announcement of the features of a proposed offer under sections 222-7 and 222-23 and the filing of the offer.
“Article 222-25
"If they declare that they do not intend to file a proposed offer, or if they are deemed not to have such an intention under the last paragraph of section 222-23, the persons referred to in section 222-22 shall not, for a period of six months from the date of their declaration or the time limit referred to in the last paragraph of section 222-23, proceed to the filing of a proposed offer, unless
"During the period referred to in the first paragraph, such persons may not be placed in a situation requiring them to file an offer. When they increase by at least 2% the number of capital securities and give access to the capital or voting rights of the issuer they own, they immediately make the declaration and indicate the objectives that they intend to pursue until the deadline is reached.
"The information referred to in the preceding paragraph shall be made available to the public under the conditions and in the manner set out in section 222-22. »
IX. - Title III of Book II is as follows:
« TITRE III
« PUBLIC OFFERS OF ACQUISITION
“Chapter IER
“General Rules and Common Provisions
“Section 1
" Scope of application, definitions and general principles
"Subsection 1
" Scope of application
“Article 231-1
"This title applies to any offer made publicly to holders of financial instruments negotiated on a regulated market of a Member State of the European Community or party to the agreement on the European Economic Area, including France, for which the AMF is the competent authority in the cases provided for in I and II of Article L. 433-1 of the monetary and financial code, by a person acting alone or in concert with the meaning of 23-10
"It also applies to public withdrawal bids on financial instruments that have ceased to be admitted to negotiations on a regulated market.
"The AMF may apply these rules, with the exception of those governing the guarantee of course, compulsory public offer and mandatory withdrawal, to public tenders for financial instruments issued by companies whose statutory seat is located outside a Member State of the European Community or a party to the agreement on the European Economic Area and which are admitted to negotiations on a regulated French market.
"For the purposes of this title, the financial instruments are those mentioned in the 1st and 2nd I of Article L. 211-1 of the monetary and financial code and all equivalent instruments issued on the basis of foreign rights. Offerings for securities other than those mentioned in the 8th of Article 233-1 are governed by the provisions of Chapter VIII of this title.
"Subsection 2
" Definitions
“Article 231-2
“In the sense of this title:
« 1° The initiator of an offer is any natural or legal person or entity that deposits or on behalf of which one or more investment service providers file an offer project;
« 2° The corporation is the issuer whose financial instruments are the subject of the offer;
« 3° The persons concerned are the initiator and the target society as well as the persons or entities acting together with each other;
« 4° The offer period is the time between the publication by the AMF of the main provisions of the proposed offer and the publication of the results of the offer;
« 5° The duration of the offer is the time between the opening date and the closing date of the offer.
"Subsection 3
“General principles
“Article 231-3
"In order for the orderly conduct of operations to the best of the interests of investors and the market, all persons involved in an offer must respect the free play of offers and their bids, equal treatment and information of the holders of the securities of the persons concerned, transparency and integrity of the market and loyalty in the transactions and competition.
“Article 231-4
"The persons concerned are subject to compliance with the rules set out in this title from the filing of the tender by the initiator and to the publication of the results of the offer.
“Article 231-5
"As soon as the offer is filed, any agreement clause entered into by the persons concerned, or their shareholders, likely to have an impact on the appreciation of the offer or its outcome, subject to the assessment of its validity by the courts, must be brought to the attention of the persons concerned, the AMF and the public. If, in particular because of the date of conclusion of the agreement, the clause could not be mentioned in the information note(s), the signatories shall, upon conclusion of the agreement and in accordance with the terms and conditions set out in section 222-22, issue a statement specifying the content of that clause.
“Article 231-6
"With the exceptions mentioned in section 233-1, the offer must cover all capital securities and provide access to the capital or voting rights of the corporation concerned.
“Article 231-7
"From the beginning of the offer period and until the close of the offer, all orders relating to the securities covered by the offer are executed on the regulated markets or markets on which the securities are admitted to the negotiations.
"The rules of regulated markets set the conditions for the application of the provisions of the first paragraph.
“Section 2
« Nature of offers and suspensive conditions
“Article 231-8
"The offer can consist of:
« 1° A single offer proposing the purchase of the securities or the exchange of those securities against issued or issued securities or a securities and cash regulation;
« 2° An alternative offer;
« 3° A main offer with one or more subsidiary options with the character of an inseparable accessory.
"When the securities exchanged are not liquid securities allowed to negotiations on a regulated market of a Member State of the European Community or a party to the agreement on the European Economic Area, the offer must include a cash option.
"When the initiator, acting alone or in concert, acquired in cash, in the twelve months preceding the filing of the offer, securities conferring more than the twentieth of the capital or voting rights of the target corporation, the offer must include a cash option.
"When the offer is an alternative offer or a unique offer with securities and cash regulations, the AMF appreciates the qualification - public offer of purchase or public offer of exchange - given to its operation by the initiator.
"The initiator may offer the holders to proceed with the deferred assignment of their securities provided that this option may be exercised within a reasonable period of time, that it is subsidiary to the main offer and that its exercise is unconditionally guaranteed by the offer-producing establishment referred to in 231-13. Any formula to propose the maturity of the difference between the market price and the proposed futures price must include guarantees and benefits equivalent to those of the delayed assignment.
“Article 231-9
"The initiator may stipulate in its offer a condition of obtaining, at the end of it, a certain number of securities, expressed as a percentage of capital or voting rights, below which the offer will not have a positive result.
“Article 231-10
"When the same initiator submits tenders on separate companies, it may provide for a positive response to one of the offers, if the threshold stipulated under section 231-9 is met, that provided that this threshold is also reached in the other or other offers. During the duration of the offers, the initiator may waive this threshold condition, particularly in the event of competing bids and bids on one of the companies involved.
“Article 231-11
"If the draft offer is to be subject, under the control of the concentrations, to a notification to the European Commission, to the Minister responsible for the economy, to the competent authority in this regard of another State Party to the agreement on the European Economic Area or Member of the United States, the initiator of this offer may specify a suspensive condition for obtaining the decision provided for in Article 6-1(a) or
"The initiator who intends to avail himself of these provisions shall give the AMF a copy of the seizures of the authorities concerned and shall keep it informed of the progress of the procedure.
"The offer is null and void as long as the proposed operation is the subject of the undertaking of the procedure provided for in Article 6-1 c of Regulation (EC) No 139/2004, of the referral of the Competition Council under the last paragraph of Article L. 430-5 of the Commercial Code or of the undertaking of a procedure of the same nature by the competent authority of the foreign State. The initiator informs whether he continues the examination of the planned operation with the authorities thus seized.
“Article 231-12
"If the proposed offer provides for the issuance of titles to be issued, the irrevocability of the commitments made requires that the general meeting of the shareholders of the issuing company propose a resolution to decide or authorize the issuance of the securities intended to pay the supply to the terms and conditions set out in the proposed offer, unless the executive body has an express delegation to that effect.
"According to the legislative, regulatory or statutory provisions applicable to the initiating company, the AMF may authorize the initiating company to include the opening of its offer with a condition of prior authorization of the operation by the General Assembly of its shareholders provided that the meeting has already been convened when the proposed offer is filed.
“Section 3
"Deposit of the draft offer and the draft information note
and note in response
“Article 231-13
"The proposed offer is filed by one or more investment service providers, approved to exercise the firm-taking activity, acting on behalf of the initiators.
"The deposit is made by letter addressed to the AMF, guaranteeing, under the signature of at least one of the presenting establishments, the content and irrevocable nature of the commitments made by the initiator.
"This letter specifies:
« 1° The objectives and intentions of the initiator;
« 2° The number and nature of the titles of the target corporation that it already holds alone or in concert or may hold on its sole initiative as well as the date and conditions to which it has been acquired over the last 12 months or may be realized in the future;
« 3° The price or parity of exchange to which the initiator offers to acquire the titles, the items he has chosen to fix them and the conditions of payment or exchange planned;
« 4° Eventually, the conditions under sections 231-9 to 231-12.
"The letter is accompanied by:
« 1° From the draft information note prepared by the initiator, alone or jointly with the company concerned. In the cases provided for in 261-1, the draft information note of the initiator shall not be prepared in conjunction with the initiator except in the event of a mandatory withdrawal;
« 2° Preliminary statements made to bodies authorized to authorize the proposed transaction.
"In the case set out in Article L. 433-3 of the monetary and financial code, the letter shall also be accompanied by:
« 1° The tender document or the proposed tender document to be tabled;
« 2° Any other binding document proving that an irrevocable and fair public offer project is or will be deposited on all capital securities and giving access to the capital or voting rights of the corporation, of which more than one-third of the capital or voting rights are held and which constitutes an essential asset of the company covered by the offer.
"In all cases, the electronic version of the draft information note is transmitted to the AMF for the purpose of posting on its website.
“Article 231-14
"The AMF publishes the main provisions of the proposed offer. This publication marks the beginning of the offer period.
“Article 231-15
"As soon as the tender is filed, the president of the AMF may apply to the market company ensuring the operation of the regulated market on which the securities of the intended corporation are allowed to suspend the negotiations.
"This request may also cover other titles that are relevant to the proposed offer.
"The application is made to several market companies if applicable.
“Section 4
“Information of shareholders and the public
“Article 231-16
"I. - From the beginning of the offer period, the draft information note is made available free of charge to the public at the initiator's headquarters and to the offer-producing establishment(s). When prepared jointly with the corporation concerned, the draft note is also made available to the headquarters of the corporation concerned and to the organizations responsible for the financial service of its securities.
"When the seat of the initiator or the establishment presenting the offer is not located in France, the provision must be made with an investment service provider located in France and designated, as the case may be, by the initiator or the presenter establishment.
"The draft information note is also published on the initiator's website and, when prepared jointly with the company concerned, on the site of the initiator, where the initiator has such a site.
“II. - In all cases, a copy of the draft information note must be sent to any person who makes the request without charge.
"III. - The proposed offer is, at the latest at the time of its submission to the AMF, the subject of a statement to which the initiator ensures the effective and integral dissemination. This statement outlines the main elements of the draft information note and outlines the modalities for making available the draft information note.
"IV. - The draft information note and the communiqué mentioned in the III contain the following: "This offer and the draft information note remain subject to the review of the AMF.
“Article 231-17
"The corporation concerned may, upon publication of the communiqué referred to in the III of section 231-16, issue a release for the purpose of publicizing the advice of its board of directors or supervisory board or, in the case of a foreign corporation, the competent body, the interest of the offer or the consequences of the offer for the corporation concerned, its shareholders and its employees.
"This statement mentions, where appropriate, the conclusions of the report of the independent expert designated under section 261-1. When this release is issued prior to the submission of the independent expert's report, the target company shall issue a new communiqué, as soon as the report is published, which mentions the findings of the independent expert's report and makes known the motivated opinion of the members of the social bodies referred to in the first paragraph.
"In all cases, when, on the day of the submission of the draft information note prepared by the initiator, the independent expert has not completed his or her mission or has not been designated, the target company shall inform the public by means of a release of the identity of the independent expert upon the publication of the initiator's draft note or upon the appointment of the expert.
"The AMF may request any information that it considers necessary.
“Section 5
" Contents of the draft information note and note in response
“Article 231-18
"The draft information note prepared by the initiator, the content of which is specified by an AMF instruction, states:
« 1° The identity of the initiator;
« 2° The content of its offer and, in particular:
“(a) The proposed price or parity, based on the usual objective evaluation criteria, the characteristics of the corporation and the market of its securities;
“(b) The number and nature of the securities he undertakes to acquire;
"(c) The number and nature of the securities of the subject corporation that it already holds, directly, indirectly or in concert, or may hold on its sole initiative. The date and conditions to which their acquisition has been made over the past 12 months or can be made in the future are also specified;
"(d) Where applicable, the conditions to which the offer is subject under sections 231-9 to 231-12;
“e) The forecast schedule of the offer;
“(f) Where applicable, the number and nature of the securities exchanged by the initiator;
“(g) The financing conditions of the transaction and their impact on the assets, activity and results of the companies concerned;
« 3° Its intentions for a period of at least 12 months to come relating to the industrial and financial policy of the companies concerned and to the maintenance of the admission of capital securities or giving access to the capital of the society referred to in the negotiations on a regulated market;
« 4° Its job directions. In particular, in view of the data it is aware of, and consistent with its intentions on the industrial and financial policy mentioned in the 3°, the predictable changes in the volume and structure of the workforce;
« 5° The law applicable to contracts between the initiator and the holders of securities of the company subject to the offer and the competent courts;
« 6° Agreements relating to the offer, to which it is a party or to which it is aware, as well as the identity and characteristics of the persons with whom it acts in concert or of any person acting in conjunction with the corporation referred to in the meaning of Articles L. 233-10 and L. 233-10-1 of the Commercial Code when it is aware of it;
« 7° If applicable, the reasoned advice of the board of directors or supervisory board, or, in the case of a foreign initiator, the competent body, the interest of the offer or the consequences of the offer for the initiator, its shareholders and its employees; the conditions in which this notice was obtained, the minority members who may request that they be referred to their identity and position;
« 8° In the case set out in the IV of Article L. 433-3 of the monetary and financial code, the undertaking to file an irrevocable and fair offer on all capital securities and giving access to the capital or voting rights of the corporation of which more than one third of the capital or voting rights is held and which constitutes an essential asset of the corporation concerned;
« 9° If applicable, the report of the independent expert referred to in Article 261-3;
« 10° The modalities for making available the information referred to in Article 231-28.
"The information note includes the signature of the initiator or its legal representative attesting to the accuracy of the information contained in the note.
"It also includes an attestation from the legal representatives of the presenter establishments on the accuracy of the information relating to the presentation of the offer and the elements of appreciation of the proposed price or parity.
“Article 231-19
"The note in response to the corporation concerned, whose content is specified by an AMF instruction, states:
« 1° The agreements mentioned in Article 231-5;
« 2° The elements mentioned in Article L. 225-100-3 of the Commercial Code, if any updated at the date of the offer such as the company is aware of it;
« 3° The independent expert's report in the cases provided for in section 261-1. The corporation may, under its responsibility, decide not to mention certain information contained in the report of the independent expert in order not to infringe its legitimate interests, provided that this omission does not risk misleading the public;
« 4° The reasoned notice of the board of directors or supervisory board or, in the case of a foreign corporation, the competent body, the interest of the offer or the consequences of the offer for the corporation concerned, its shareholders and its employees. The voting conditions in which this notice was obtained are specified, the minority members who may request that they be referred to their identity and position;
« 5° When available and different from the notice referred to in 4°, the observations of the business committee or, if not, staff delegates or, if not, staff members;
« 6° The intentions of members of the social organs mentioned in the 4th to bring their titles to offer;
« 7° The modalities for making available the information referred to in Article 231-28.
"The note in response shall include the signature of the legal representative of the relevant company attesting to the accuracy of the information contained in the note.
“Section 6
"WFP review of the proposed offer
“Article 231-20
"I. - The AMF has a ten-day negotiation period following the commencement of the offer period to assess the compliance of the proposed offer with the applicable legislative and regulatory provisions.
“II. - In the cases provided for in 261-1, the declaration of conformity shall be made not earlier than five days after the filing of the draft note in response to the corporation concerned.
"III. - In all cases, the AMF is empowered to request all appropriate justifications and guarantees as well as any additional information necessary for its assessment both on the draft offer and on the draft information note or note in response. The deadline is then suspended. It resumes running on receipt of the required elements.
“Article 231-21
"To assess the conformity of the proposed offer to the applicable legislative and regulatory provisions, the AMF considers:
« 1° The objectives and intentions of the initiator;
« 2° Where applicable, the nature, characteristics, quotations, or the market of the proposed securities in exchange;
« 3° The conditions laid down by the initiator under articles 231-9 and 231-10;
« 4° The information contained in the draft information note;
« 5° In the cases provided for in section 261-1, the financial conditions of the offer, in particular with respect to the report of the independent expert and the reasoned advice of the board of directors, the supervisory board or, in the case of a foreign corporation, the competent body.
"The AMF may request the initiator to amend its proposed offer if it considers that it may affect the provisions mentioned in the first paragraph, including the principles defined in section 231-3.
“Article 231-22
"In the cases and under the conditions set out in Chapter II, Section 2 and Chapters III to VII of this title, the AMF shall verify the application of the specific provisions applicable to the exchange price or parity.
“Article 231-23
"When the proposed offer meets the requirements of sections 231-21 and 231-22, the AMF publishes a reasoned declaration of compliance that takes the information note visa.
"In the opposite case, the AMF, by reason of its decision, refuses to declare the proposed offer in conformity.
"The AMF shall, where appropriate, set the date for resumption of negotiations on the titles concerned if they are still suspended. She informs the market company.
“Article 231-24
"In the cases referred to in the III of Article L. 433-1 of the monetary and financial code, where the offer relates to capital securities also admitted to the negotiations on a market located outside a Member State of the European Community or a party to the agreement on the European Economic Area, regulated or not, that the AMF does not declare itself competent, and that a document of offer has been established within the framework of a procedure issued by a Only sections 231-36, 231-38 and 231-41 are then applicable. The information provided for in Articles 231-5, 231-18 and 231-19 not included in the tender document must also be mentioned in the communiqué.
“Article 231-25
"When an offer document has been approved by the competent authority of another Member State of the European Community or a party to the agreement on the European Economic Area, the initiator and the company concerned shall be exempted from the establishment of an information note and a note in response, provided that their application is accompanied by a copy of the tender document, translated into French, approved by the competent authority.
"This document is published in accordance with the terms and conditions set out in Article 231-27.
“Article 231-26
"The company concerned shall file with the AMF a draft note in response to no later than the fifth negotiating day following the publication of the AMF's declaration of compliance. By exception, where an independent expert is designated pursuant to 261-1, the company concerned shall file the draft note in response no later than the twentieth negotiating day following the commencement of the offer period.
"The electronic version of the draft note in response is forwarded to the AMF for the purpose of posting on its website.
"Once deposited, the draft note in response shall be made available to the public in accordance with the terms referred to in I and II of section 231-16 and shall contain the reference provided for in IV of that article. At the latest, at the time of its filing with the AMF, it is the subject of a release whose target company ensures the effective and integral diffusion. This statement provides the main elements of the draft note in response, specifying the terms and conditions of availability and includes the reference provided for in Article 231-16 IV.
"With the exception of the cases provided for in Article 231-20 II, the AMF shall have a five-day negotiation period following the filing of the draft note in response to issue its visa under the conditions provided for in Article 231-20. During this period, it is authorized to request any additional information necessary for its assessment. The deadline is then suspended. It resumes running on receipt of the required elements.
“Section 7
" Modalities for the dissemination of the information note
and the note in response
“Article 231-27
« 1° The public broadcast of the information note referred to by the AMF prepared by the initiator, alone or in conjunction with the company concerned, must intervene before the offer is opened and no later than the second negotiating day following the declaration of conformity.
« 2° The information note referred to by the AMF is the subject of effective dissemination in one of the following forms:
“(a) Publication of the note in at least one day of economic and financial information, national dissemination;
“(b) Provision of the note free of charge to the initiator's headquarters and to the offer's establishment(s), and publication of a summary of the note, in the same manner as the initiator has, or of a communiqué, which the initiator ensures the effective and integral diffusion, which specifies the terms and conditions of the provision of the note.
"When the seat of the initiator or the presenter establishment is not located in France, the provision must be made with an investment service provider located in France and designated, as appropriate, by the initiator or the presenter establishment. Where the information note has been prepared in conjunction with the corporation concerned, it is also made available free of charge to the headquarters of the corporation concerned and to the organizations responsible for the financial service of its securities.
"In all cases, a copy of the note must be sent to any person who makes the application and the electronic version of the note must be sent to the AMF for the purpose of posting on its website.
« 3° The company concerned shall forward the note in response to the initiator as soon as the AMF applies its visa. The note in response must be effectively distributed in one of the following forms:
“(a) Publication of the note in at least one day of economic and financial information, national dissemination;
“(b) Provision of the note free of charge to the headquarters of the corporation concerned and to the organizations responsible for the financial service of its securities and publication of a summary of the note, in the same manner as has, or of a communiqué, of which the initiator ensures the effective and integral dissemination, which specifies the terms and conditions of making the note available.
"In all cases, a copy of the note must be sent to any person who makes the application and the electronic version of the note must be sent to the AMF for the purpose of posting on its website.
« 4° The information note and response note, as published and made available to the public, are always identical to the original version of the AMF.
“Section 8
“Other information
“Article 231-28
"I. - The information relating to the characteristics, including legal, financial and accounting, of the initiator and of the company concerned, the content of which is specified by an instruction of the AMF, is filed with the AMF and made available to the public, no later than the day of the opening of the offer, in accordance with the terms referred to in 2° or 3° of section 231-27.
“II. - The reports of the legal controllers of the accounts of the initiator and the company concerned must also be filed with the AMF.
"The foreign companies and initiators, with the agreement of the AMF, designate a legal controller who verifies the translation of the financial statements and their accompanying notes as well as the relevance of the supplements and adaptations, and transmits to the AMF a certificate on its work.
"III. - For the application of the exemption provided for in 2° of section 212-4 and 3° of section 212-5, the legal controllers certify that the forecasting, estimated or pro forma information has been properly established on the basis indicated and that the accounting basis is consistent with the accounting methods applied by the initiator.
"The legal controllers of the accounts shall make an overview of the information referred to in I and, where appropriate, of their updates or corrections. This overall reading and, where applicable, the specific audits shall be conducted in accordance with a standard of the National Board of Auditors.
"They shall prepare to the initiator a letter of termination of work, in which they shall state the reports issued and indicate, at the end of their overall reading and any specific audits carried out in accordance with the professional standard mentioned above, their possible observations.
"A copy of this letter of completion is transmitted to the AMF by the initiator.
"IV. - The initiator, the target company and at least one of the presenter establishments shall file, no later than the day of the opening of the offer, a certificate guaranteeing that all the information required by this section has been filed and published.
“Article 231-29
"When the AMF finds a significant omission or inaccuracy in the content of the information referred to in section 231-28, it shall, as the case may be, notify the initiator or the corporation to which the corrections to the AMF are to be filed.
"It is significant any omission or inaccuracy, in respect of these regulations or instructions of the AMF, which is likely to clearly distort the investor's appreciation of the proposed transaction.
"These corrections are made available to the public, as soon as possible, under the conditions and in the terms referred to in 2° or 3° of Article 231-27.
“Article 231-30
"The closing date of the offer may, by a decision of the AMF, be deferred for securities holders to have at least a five-day negotiation period to decide after the publication of the information referred to in section 231-29.
“Section 9
"Proposal Calendar
“Article 231-31
"The schedule of the offer is set based on the date of the distribution of the common information note prepared by the initiator and the target corporation or the response note prepared by the target corporation.
“Article 231-32
"The offer is open the day after the broadcast is either of the information note prepared jointly by the initiator and the company concerned, either of the information note prepared by the initiator, or in the cases provided for in section 261-1, of the note in response to the company concerned, as well as of the information referred to in section 231-28 and after receipt by the AMF, if any, of the necessary prior authorizations.
"The opening, closing and publication dates of the results of the offer are published by the AMF.
“Article 231-33
"People who wish to present their securities to the offer must send their orders to an authorized provider during the duration of the offer.
“Article 231-34
"For the duration of an offer, the AMF may defer the closing date.
“Article 231-35
"The AMF publishes the results of the public offer that are transmitted to it, as the case may be, by the relevant market company or by the presenter establishment.
“Section 10
“ Obligations of the leaders, the people concerned
and their advice
“Article 231-36
"The persons concerned, their leaders and their counsel must be particularly vigilant in their statements.
"Promotional communications, regardless of form and mode of distribution, are communicated to the AMF prior to their dissemination.
"These communications must:
« 1° Announce that an information note or note in response has been or will be published and indicate where investors can or will be able to obtain it;
« 2° Being clearly recognizable as such;
« 3° Do not include indications of a nature to induce the public in error or likely to discredit the initiator of the offer or the company covered by the offer;
« 4° be consistent with the information contained in the press releases, the information note or the note in response;
« 5° If applicable, include, at the request of the AMF, a warning on certain exceptional features of the initiator, the target corporation or financial instruments that are the subject of the offer.
“Article 231-37
"Any information that is complementary to the information note or to the response note referred to by the AMF must be made available to the public in the form of a statement to which the author ensures the effective and integral dissemination.
“Section 11
"Control of public tender operations
“Article 231-38
"The persons concerned, the members of their administrative, supervisory or managerial bodies, the presenter establishments and the consulting establishments, the persons or entities holding, directly or indirectly, at least 5% of the capital or voting rights to the general assemblies and other persons or entities acting in conjunction with them shall declare every day, after the trading session, the purchase and sale transactions they have carried out on the securities concerned by the offer,
"The same reporting obligation applies to individuals or entities that have acquired, directly or indirectly, since the filing of the draft information note, a quantity of securities of the subject corporation representing at least 0.5% of its capital, as long as they hold that amount of securities.
"The statements must specify:
« 1° The name and address of the seller or purchaser;
« 2° The date of negotiation or assignment;
« 3° The number of titles processed and the course of the transaction;
« 4° The number of titles and voting rights owned after the transaction.
"In the case of a public exchange offer, the declarations agree on transactions relating to the titles of the initiator and the securities of the initiator.
“Article 231-39
"With the exception of those made by the presenters and the consulting institutions, the AMF publishes the statements transmitted to it.
“Article 231-40
"Every person or entity who has just increased the number of titles or voting rights that it has of at least 2% of the total number of titles or voting rights of the target corporation or who has a number of titles representing more than 5%, 10%, 15%, 20%, 25% or 30% of the capital or voting rights of the target corporation is required to publish immediately the objectives that it intends to pursue in respect of the course.
“Article 231-41
"Any intermediary who intervenes in the delivery of orders is required to respect this title, which he keeps informed, as necessary, his or her order donor.
“Section 12
"Dispute on the equivalence of defensive measures
“Article 231-42
"Any person who disputes the equivalence of the measures referred to in Article L. 233-32 of the Commercial Code shall simultaneously transmit to the AMF and the corporation concerned the means and documents on which it bases its dispute. Upon receipt of these documents, the company concerned shall have a ten-day negotiation period to notify the AMF of its comments.
"The AMF shall render its decision within five days of negotiation from the response of the corporation concerned. The AMF may request any additional justification and information. The deadline is then suspended. It resumes running on receipt of the required elements.
"The AMF makes its decision public.
“Section 13
"Suspension of the effects of restrictions on the exercise of voting rights and extraordinary rights of appointment and revocation of directors, members of the Supervisory Board, members of the Executive Board, Executive Directors, Executive Directors
“Article 231-43
"The effects of the statutory limitation of the number of votes each shareholder has in the assemblies referred to in the first paragraph of Article L. 225-125 of the Commercial Code are suspended at the first general meeting following the close of the offer when the initiator of the offer, acting alone or in concert, has held more than two thirds of the capital or voting rights of the corporation concerned.
“Article 231-44
"When the statutes provide, the effects of the statutory restrictions on the exercise of the voting rights attached to the shares of the corporation as well as the effects of any clause in a convention concluded after April 21, 2004 providing restrictions on the exercise of the voting rights attached to the shares of the corporation are suspended at the first general meeting following the close of the offer when the initiator of the offer, acting alone or in concert,
“Article 231-45
"When the statutes provide, the extraordinary rights of appointment or revocation of directors, members of the supervisory board, directors general, directors general, directors general, held by certain shareholders are suspended at the first general meeting following the close of the offer when the initiator of the offer, acting alone or in concert, holds at the end of the offer more than half of the capital or voting rights of the corporation concerned.
“Chapter II
“Normal procedure
“Section 1
“General provisions
“Article 232-1
"When the initiator acting alone or in concert holds less than half of the capital or voting rights of the corporation concerned, only the normal bidding procedure is applicable.
“Article 232-2
"The duration of the offer is 25 days of negotiation. This period is extended, without being able to exceed thirty-five days of negotiation, when the corporation concerned has not filed a joint note with the initiator.
"For an exception, where an initiator of an offer takes precedence over the provisions of Article 231-11, the closing date of the offer and its schedule shall be stopped after receipt by the AMF of the supporting elements of the authorization of the authorities responsible for controlling the concentration under the conditions mentioned in the first paragraph of Article 231-11.
"In accordance with the AMF, the relevant market company discloses the terms and time limits of the deposit by the account content of the securities made, the delivery and payment in securities or capital as well as the date on which the results of the offer will be available.
"Orders of persons wishing to present their securities in response to the offer can only be revoked until and including the closing day of the offer.
“Article 232-3
"The result of the offer is published in principle nine days of negotiation no later than after the closing date.
"If the AMF finds that the offer has a positive continuation, the market company makes known the terms and conditions for the payment and delivery of the securities acquired by the initiator. If the AMF finds that the offer is without further action, the market company discloses the date on which the securities submitted in response will be returned to the depositing account content.
"When the offer is accompanied by a waiver threshold, the AMF publishes a provisional result as soon as it is aware by the market company of the total of securities deposited with the market company by the authorized intermediaries for centralization purposes.
“Article 232-4
"If the offer knows a positive outcome, it is reopened within ten days of negotiation following the publication of the final result.
"The AMF publishes the offer reopening schedule that lasts at least ten days of negotiation. This publication marks the beginning of a new offer period that ends with the publication of the results.
“Section 2
« Competitive and sour offers
“Article 232-5
"Upon the opening of an offer and five days of negotiation no later than its closing date, a competing public tender for the securities of the corporation or any of the companies concerned may be filed with the AMF.
“Article 232-6
"The initiator has the ability to override the terms of its offer or the last competing offer no later than five days before the close of the offer.
“Article 232-7
"In order to be declared compliant, a competing public purchase offer or a cash transaction must be denominated at a higher price of at least 2% at the price stipulated in the public purchase offer or the previous cash transaction.
"In all other cases, the AMF declares to be in compliance with the proposed competitive or auspicious offer if it, appreciated under the conditions set out in sections 231-21 and 231-22, has significantly improved the conditions proposed to the holders of the titles concerned.
"A competing public offer or a bid can however be declared in conformity if its initiator, without changing the terms stipulated in the previous offer, removes the threshold below which the offer will not have a positive outcome.
“Article 232-8
"If it declares a compliance exemption, the AMF appreciates whether it is necessary to postpone the closing date of the offer(s) and to render null and void the order(s) for the presentation of the securities in response to the offer or offers.
“Article 232-9
"Unless there is an automatic increase in terms of the offer, the initiator of an offer that overlooks the terms of his previous offer sets out a document complementary to his information note submitted to the AMF's appreciation under the conditions set out in section 231-20.
"This document specifies the terms of the exemption under the previous conditions and the changes in the various elements required by sections 231-18 and 231-19.
"The reasoned notice of the board of directors or supervisory board or, in the case of a foreign corporation, of the competent body of the relevant corporation including the details provided for in section 231-19 is communicated to the AMF. It is broadcast under the conditions set out in section 231-37.
« Article 232-10
"A competing public offer is open under the conditions set out in section 231-32. When the AMF determines the schedule, it aligns the closing dates of the offers in the presence on the most distant date without prejudice to the provisions of section 231-34.
"The opening of a competing offer makes null and void the order of presentation of the securities in response to the previous offer.
“Article 232-11
"The initiator may waive its public offer within the five-day negotiation period following the publication of the schedule of a competing offer or offer. It informs the AMF of its decision which is the subject of a publication.
"The initiator may also waive its offer if the offer becomes irrelevant, or if the company concerned, because of the measures it has taken, sees its modified consistency during the offer or in the case of a positive continuation of the offer. He may use this faculty only with the prior authorization of the AMF that rules under the principles laid down in section 231-3.
“Article 232-12
"When more than ten weeks have elapsed since the opening of an offer, the AMF, with a view to speeding up the confrontation of offers in accordance with their alternation, can set a deadline for the filing of each of the successive bids.
"The AMF makes its decision known and how it is implemented. The deadline, deducted from the date of publication of the AMF's decision on each exemption, cannot be less than three days of negotiation.
“Article 232-13
"When more than ten weeks have elapsed since the opening of an offer, the AMF, in order to accelerate the outcome of the offers in attendance, can decide to use a last auction device.
"It sets out the date on which each of the initiators will have to let him know the continuation of his offer under the same conditions or the filing of a final bid.
"If applicable, the AMF shall decide on the conformity of the deposited or surrogates. It sets out the final closing date of the offers.
"With the exception of the provisions of section 232-6, no bids may be filed unless a competing public offer is filed, declared in conformity and open.
“Section 3
" Interventions on the market of securities affected by the offer
"Subsection 1
"Initiator Interventions
and persons acting in concert with him
“Article 232-14
"From the filing of the proposed offer or the resumption of the negotiations on the securities covered by the offer and until the publication of the results of the offer, the initiator of a public offer of purchase without any of the conditions referred to in sections 231-9 to 231-11 and the persons acting together with him are allowed to intervene in the purchase on the market of the securities of the corporation concerned.
"Up to the deadline set by Article 232-6 for the filing of a bid and when the market intervention is carried out above the price of the offer, the raising of this price to 102% at least of the stipulated price and, beyond that, at the level of the price actually paid on the market is automatic, regardless of the quantity of securities purchased, and whatever the price to which they have been offered, without changing the condition of the offerer The same rule applies, if any, to the subscription rights market to a capital securities issue made by the corporation.
"Passed this date and until the close of the offer, the initiator and the persons acting together with him cannot buy securities from the company subject to a price higher than that of the offer.
“Article 232-15
"From the closing of the offer to the publication of its result, the initiator and the persons acting together with him cannot buy securities from the company subject to a price higher than that of the offer.
“Article 232-16
"During the period between the close of the offer and the date of the communication by the AMF of the positive continuation of the offer provided for in section 232-3, the date on which the securities will be returned to the depositing intermediaries, the initiator and the persons acting together with him cannot yield to the securities market of the corporation concerned.
"Subsection 2
" Interventions of the target corporation
and persons acting in concert with her
“Article 232-17
"The target corporation and persons acting in conjunction with it may not intervene directly or indirectly in the capital market or give access to the capital of the corporation.
"When the offer is paid in full in cash, the corporation concerned may continue the execution of a share buyback program as long as the resolution of the General Assembly that authorized the program expressly provided for it and, when it is a measure that could fail the offer, that its implementation is subject to approval or confirmation by the General Assembly.
"Subsection 3
" Interventions of the persons concerned in the case of a public offer
exchange or public offer of purchase and exchange
“Article 232-18
"When the offer includes, in whole or in part, the surrender of securities, the persons concerned may not intervene in the capital market or give access to the capital of the corporation covered during the offer period.
"From the filing of the tender to the closing of the offer, these persons cannot intervene in the capital market or give access to the capital issued by the corporation whose securities are offered in exchange.
"Subsection 4
“Presented by the presenter institutions
and consulting institutions
“Article 232-19
"The provisions of sections 232-14 to 232-16 and 232-18 shall apply to interventions on behalf of the individual made by a consulting institution of the initiator or of the company or company intended to present the offer, as well as by any company of their group.
"However, the institution is authorized to intervene:
« 1° On the securities involved in the offer as part of its arbitration, market keeping and position risk coverage activities, to the extent that these interventions are part of the continuity of its usual practices and fall under separate teams, means, objectives and responsibilities of those engaged in the offer;
« 2° On the market when he received the initiator's mandate to put in place the coverage of a risk taken by the initiator during the operation.
"Subsection 5
" Interventions in case of reopening of the offer
“Article 232-20
"The provisions of sections 232-15, 232-16, 232-18 and 232-19 remain applicable during the reopening period of the offer.
"However, the corporation issuing securities paying a public exchange offer may intervene on its own securities as part of the share buyback program provided for in Article L. 225-209 of the Commercial Code.
“Chapter III
“Simplified procedure
“Article 233-1
"The use of the simplified bidding procedure may take place in the following cases:
« 1° An offer issued by a shareholder already holding directly or indirectly, alone or in concert within the meaning of Article L. 233-10 of the Commercial Code, at least half of the capital and voting rights of the corporation concerned;
« 2° An offer issued by a shareholder to hold directly or indirectly, alone or in concert within the meaning of Article L. 233-10 of the Commercial Code, after acquiring at least half of the capital and voting rights of the corporation concerned;
« 3° An offer limited to participation in the capital of the target corporation, the initiator of the offer only for a maximum participation of 10% of the capital titles conferring voting rights or 10% of the voting rights of the target corporation, taking into account the securities of the same nature and the voting rights it already holds, directly or indirectly;
« 4° An offer issued by a person acting alone or in concert, within the meaning of Article L. 233-10 of the Commercial Code, for the acquisition of priority dividend shares, investment certificates or voting rights certificates;
« 5° An offer to repurchase its shares by a company pursuant to Article L. 225-207 of the Commercial Code;
« 6° An offer to repurchase its shares by a company pursuant to Article L. 225-209 of the Commercial Code;
« 7° An offer by the issuing company for securities giving access to its capital;
« 8° An offer by which the issuing company proposes the exchange of debt securities not giving access to capital against capital securities or giving access to its capital.
“Article 233-2
"The simplified public purchase offer is made by purchases on the market, subject to the conditions fixed at the opening of the offer, except in the limited offer cases provided for in 3°, 5° and 6° of Article 233-1 and 233-4 and 233-5.
"The simplified public exchange offer is centralized by the relevant market company or, under its control, by the presenter establishment.
"The duration of a simplified offer may be limited to ten days of negotiation if it is a purchase offer and fifteen days of negotiation in other cases, unless it is an offer of redemption pursuant to Article L. 225-207 of the Commercial Code.
“Article 233-3
"If the offer is an offer of purchase resulting from the application of the 1st of section 233-1 and subject to the provisions of sections 231-21 and 231-22, the price stipulated by the initiator of the offer may not be less, unless agreed by the AMF, at the price determined by the calculation of the average of the exchange courses, weighted by the volumes of transactions, during the sixty trading days prior to the publication of the offer
“Article 233-4
"In the case of an offer for investment certificates or voting rights certificates, the initiator is authorized to limit his or her operation to the acquisition of a quantity of voting rights certificates or investment certificates equal, as the case may be, to the number of investment certificates or voting rights certificates that he or she already holds.
“Article 233-5
"If the initiator of a simplified offer has been authorized to reserve the ability to reduce the sales or exchange orders submitted in response to its offer, the reduction is effected proportionally, subject to the necessary adjustments.
"The reduction of orders submitted to a redemption offer filed pursuant to the 5th of Article 233-1 shall be effected under the conditions laid down in Decree No. 67-236 of 23 March 1967.
"In these assumptions, the initiator cannot intervene in the market of the securities concerned.
“Article 233-6
"The provisions of sections 232-15, 232-16, 232-18 and 232-19 apply to simplified public offers. However, the issuing company of capital securities paying a simplified public exchange offer may continue its interventions on its own securities as part of the share buyback program provided for in Article L. 225-209 of the Commercial Code.
“Chapter IV
"Proposal of a public tender
“Article 234-1
"In this chapter, by capital securities, it is necessary to hear capital securities conferring voting rights if the capital of the corporation concerned is constituted partly by securities without the right to vote.
“Article 234-2
"Where a natural or legal person, acting alone or in concert within the meaning of Article L. 233-10 of the Commercial Code, has just held more than one-third of the capital securities or more than one-third of the voting rights of a corporation, it is obliged at its initiative to immediately inform the AMF and to file a draft offer for the totality of the capital and securities giving access to capital or voting rights, and to the terms and conditions stated in
"The proposed public offer cannot include any clause providing for the necessary presentation of a minimum number of securities so that the offer has a positive continuation. Subject to this reservation, the provisions of chapters I and, as the case may be, II or III of this title shall apply to public tenders for which the filing is mandatory.
“Article 234-3
"Without prejudice to the IV of Article L. 433-3 of the monetary and financial code, where more than one third of the capital or voting rights of a corporation whose capital securities are admitted to negotiations on a regulated market of a Member State of the European Community or of another State Party to the agreement on the European Economic Area, including France, is held by another company and constitutes an essential part of its assets, Article 234 applies when
« 1° A person comes to take control of the detaining society within the meaning of the texts applicable to the latter;
« 2° A group of people acting in concert has taken control of the detaining company in the sense of the texts applicable to the latter, unless one or more of them already have control and remain predominant and, in this case, as long as the balance of the respective participations is not significantly changed.
"The natural or legal persons acting alone or in concert shall be held to respect the obligation set out in section 234-2, when they are held as a result of mergers or contributions more than one third of the capital securities or voting rights of a corporation as long as these securities represent an essential part of the assets of the absorbed or brought entity.
“Article 234-4
"The AMF may authorize, under conditions that are made public, the temporary crossing of the third-party threshold referred to in sections 234-2 and 234-3 if the exceedance is less than 3% of the capital and voting rights and if its duration does not exceed six months. The person(s) concerned undertakes not to exercise the corresponding voting rights during the reclassification period.
“Article 234-5
"The provisions of section 234-2 apply to natural or legal persons, acting alone or in concert, who directly or indirectly hold a number between the third party and half of the total number of capital securities or voting rights of a corporation and who, in less than twelve consecutive months, increase the number of capital securities or voting rights held by them of at least 2% of the total number of capital securities or
"People who, acting alone or in concert, directly or indirectly hold a number between the third party and half of the capital or voting rights of a corporation shall keep the AMF informed of changes in the number of capital titles or voting rights held by them. The AMF makes this information public.
“Article 234-6
"When a proposed offer is filed under sections 234-2, 234-3 and 234-5, the proposed price must be at least equivalent to the highest price paid by the initiator, acting alone or in concert within the meaning of section L. 233-10 of the Commercial Code, for a period of twelve months prior to the filing of the proposed offer.
"The AMF may request or authorize the modification of the proposed price when a manifest change in the characteristics of the corporation or the market of its securities justifies it. These include:
« 1° Where events that may significantly affect the value of the securities concerned have occurred in the last 12 months prior to the filing of the offer;
« 2° When the target company is in a situation of proven financial difficulty;
« 3° When the price mentioned in the first paragraph results from a transaction with related elements between the initiator, acting alone or in concert, and the seller of the securities acquired by the initiator over the last twelve months.
"In these cases or in the absence of a transaction by the initiator, acting alone or in concert, on the securities of the corporation referred to in the twelve-month period referred to in the first paragraph, the price is determined according to the criteria of objective evaluation used, the characteristics of the corporation concerned and the market of its securities.
“Article 234-7
"The AMF may note that there is no requirement to file a public tender when the thresholds mentioned in sections 234-2 and 234-5 are crossed by one or more people who have just declared to act together:
« 1° With one or more shareholders who already held, alone or in concert, the majority of the capital or voting rights of the corporation provided that they remain predominant;
« 2° With one or more shareholders who already held, either alone or in concert, between the third party and half of the corporation's capital or voting rights provided that the corporation retains a higher interest, and that at the time of this concert they do not cross one of the thresholds referred to in sections 234-2 and 234-5.
"As long as the balance of the respective participations in a concert is not significantly altered by reference to the situation observed during the initial declaration, there is no public offer.
“Article 234-8
"The AMF may grant an exemption from the requirement to file a public tender if the person(s) concerned warrants to meet one of the conditions listed in section 234-9.
"The AMF shall decide after having examined the circumstances under which the threshold(s) have been or will be crossed, the distribution of capital and voting rights and the conditions under which, if any, the transaction has been or will be approved by the general meeting of the shareholders of the corporation concerned.
“Article 234-9
"The cases in which the AMF may grant an exemption are:
« 1° Free transfer between natural persons, distribution of assets carried out by a legal entity on the pro rata of the rights of associates;
« 2° Subscribing to the capital increase of a company in a situation of proven financial difficulty, subject to the approval of the general assembly of its shareholders;
« 3° Merger or intake of assets subject to approval by the General Meeting of Shareholders;
« 4° A merger or contribution transaction submitted for approval by the General Meeting of Shareholders and the conclusion between shareholders of the companies involved in the transaction, of an agreement constituting a concert action;
« 5° Reduction of the total number of capital titles or the total number of voting rights in the corporation concerned;
« 6° Detention of the majority of the voting rights of the corporation by the applicant or by a third party acting alone or in concert;
« 7° Reclassification, or analyzing as a reclassification, between companies or persons belonging to the same group.
« Article 234-10
"In the case of transactions subject to the approval of shareholders of the corporation concerned, the AMF may decide on an application for exemption before the meeting is held, subject to the availability of specific information on the proposed transaction.
"In the other cases provided for in section 234-9, as well as in the situations referred to in section 234-7, the AMF may pre-specify the execution of an operation on the basis of the nature, circumstances and time frame for the implementation of the project and in the light of the evidence provided by the person(s) concerned.
"The AMF is informed of the operation and, on the assumption that the operation is not implemented on the basis of the conditions initially provided, can be seen as a result of the invalidity of the previously issued decision.
"If the AMF grants the requested exemption or finds that there is no public tender, it publishes its decision and discloses, if any, the commitments made by the applicant(s).
“Chapter V
“Course guarantee procedure
“Section 1
"Course guarantees for financial instruments
admitted to negotiations on a regulated market
“Article 235-1
"A proposed course guarantee must be filed by a natural or legal person acting alone or in concert within the meaning of Article L. 233-10 of the Commercial Code, who acquires or has agreed to acquire a block of securities conferring on him, taking into account the securities or voting rights that it already holds, the majority of the capital or voting rights of a corporation.
"This project specifies the identity of the transferor(s) and assignee(s) of the block, the quantity of the assigned securities, the date, the method of realization and the price of the assignment, as well as any additional information necessary for the appraisal of the transaction.
“Article 235-2
"The purchaser of the block undertakes to acquire on the market, for a period of ten days of minimum negotiation, all securities presented at the sale at the price to which the assignment of securities has been or must be made, and only at that price or at that price.
"The AMF may authorize a lower offer price in the case that the assignment would be accompanied by a guarantee clause for an identified risk or a deferred settlement, for the whole or for part. In the case of a deferred settlement, the discount rate retained cannot be greater than the market rate observed during the assignment.
"The provisions of section 232-15 apply to course guarantees.
“Article 235-3
"In applying section 234-2, the AMF may place under the mandatory offer a project of acquisition, or the acquisition, of one or more blocks of securities conferring the majority of the capital or voting rights of a corporation in the following cases:
« 1° The transaction is accompanied by related elements that may affect equality, laid down by the first paragraph of section 235-2, between the price paid for the majority block and the price offered to other shareholders;
« 2° The block(s) shall be acquired from persons who did not previously hold, together with each other or with the assignee, the majority of the voting rights of the corporation.
"In either of these hypotheses, the public offer shall be carried out according to the simplified procedure of 2° of Article 233-1, if the initiator holds, after the acquisition of the securities block(s), the majority of the capital and voting rights of the corporation.
“Section 2
“Course guarantees on financial instruments admitted to negotiations on a multilateral organized negotiation system
“Article 235-4
"Course guarantees relating to financial instruments admitted to negotiations on an organized multilateral trading system are subject to the provisions of Chapter I with the exception of Section 2. They are also subject to articles 235-1 and 235-2.
“Chapter VI
"Public Offers for Retirement
“Article 236-1
"When the majority shareholder(s) hold together, within the meaning of Article L. 233-10 of the trade code, at least 95% of the voting rights of a corporation whose shares are admitted to the negotiations on a regulated market of a Member State of the European Community or part of the agreement on the European Economic Area, including France, or have ceased to be, the holder of the majority voting rights
"After conducting the necessary audits, the AMF shall decide on the application presented to it, in particular in view of the conditions prevailing on the market of the securities concerned and the information provided by the applicant.
"If it declares the request admissible, the AMF shall notify the shareholder or majority shareholders of the request to file, within a time limit set by the AMF, a draft withdrawal public offer to such conditions as it may be declared in compliance.
“Article 236-2
"When the majority shareholder(s) hold together, within the meaning of Article L. 233-10 of the Commercial Code, at least 95% of the voting rights of a corporation whose investment certificates and, where applicable, the voting rights certificates are admitted to the negotiations on a regulated market of a Member State of the European Community or part of the agreement on the European Economic Area, including France,
"After conducting the necessary audits, the AMF shall decide on the application presented to it, in particular in view of the conditions prevailing on the market of the securities concerned and the information provided by the applicant.
"If it declares the request admissible, the AMF shall notify the shareholder or majority shareholders of the request to file, within a time limit set by the AMF, a draft withdrawal public offer to such conditions as it may be declared in compliance.
“Article 236-3
"The majority shareholder(s) that hold together within the meaning of Article L. 233-10 of the Commercial Code at least 95% of the voting rights of a corporation whose shares are admitted to the negotiations on a regulated market of a Member State of the European Community or a party to the agreement on the European Economic Area, including France, or ceased to be, may file with the AMF a draft offer for non-public voting
“Article 236-4
"The majority shareholder(s) that hold together within the meaning of Article L. 233-10 of the Commercial Code at least 95% of the voting rights of a company whose investment certificates and, if applicable, the voting rights certificates are allowed to negotiations on a regulated market of a Member State of the European Community or part of the agreement on the European Economic Area, including France, or have ceased to be tendered with the European Economic Area,
“Article 236-5
"When an anonymous corporation whose capital securities are admitted to a regulated market is transformed into a share-sponsored corporation, the person(s) who controlled the corporation prior to its transformation or the partner(s) sponsored shall, upon the adoption by the General Assembly of the shareholders of the resolution for the transformation of the corporation, file a draft withdrawal public offer that does not contain any minimum conditions and that may be stated under such conditions as it may be declared.
"The initiator of the proposed offer specifies to the AMF whether he reserves the right, at the end of the offer and according to its result, to request that all capital securities or giving access to the capital and voting rights of the company be removed from the regulated market on which they are admitted.
“Article 236-6
"The natural or legal person(s) that control a corporation shall inform the AMF:
« 1° When proposing to submit to the approval of an extraordinary general assembly one or more significant amendments to the statutory provisions, including those relating to the form of the corporation, to the terms and conditions for the assignment and transmission of capital securities and to the rights attached to it;
« 2° When deciding on the principle of the merger-absorption of that corporation by the corporation that holds the control, assignment or contribution to another corporation of the total or principal of the assets, the reorientation of the social activity or the removal, for several years, of any remuneration of capital securities.
"The AMF appreciates the consequences of the planned transaction in relation to the rights and interests of the holders of capital securities or the holders of voting rights of the corporation and decides whether there is a need to implement a public withdrawal offer.
"The proposed offer, which cannot contain a minimum requirement, is labelled on such conditions as it may be declared in compliance.
“Article 236-7
"The public withdrawal offer is made by purchases on the market at the price of the offer for a period of ten days of negotiation at least or, if the circumstances and terms of the transaction warrant, by centralization of orders of sale or exchange to the market company or, under its control, by the presenter establishment.
"The provisions of sections 232-15, 232-16, 232-18 and 232-19 apply to public withdrawal offers.
"However, the corporation issuing capital securities paying a public withdrawal offer made by way of exchange may continue its interventions on its own securities as part of the share buyback program provided for in Article L. 225-209 of the Commercial Code.
“Chapter VII
« Mandatory withdrawal
“Section 1
"Retreat mandatory after a public withdrawal offer
“Article 237-1
"At the end of a public withdrawal offer made pursuant to sections 236-1, 236-2, 236-3 or 236-4, the shareholder or majority group may be transferred the securities not submitted by minority shareholders or holders of investment certificates or voting rights certificates as long as they do not represent more than 5% of the capital or voting rights for compensation from them.
"Under the same conditions, the shareholder or the majority group may be transferred the securities giving or being able to give access to the capital, provided that the capital securities that may be created by conversion, subscription, exchange, refund, or in any other way, securities that give or may give access to the unsubmitted capital, once added to the existing capital securities not presented, do not represent more than 5% of the sum of the existing capital securities or may be created.
“Article 237-2
"When filing the tender, the initiator shall notify the AMF whether he reserves the right to request the implementation of the mandatory withdrawal once the offer is completed and according to its result, or if he requests that the mandatory withdrawal be made upon the close of the public withdrawal offer.
"In support of the offer project, the initiator shall provide the AMF with an assessment of the securities of the company concerned, carried out according to objective methods used in the event of the disposal of assets, taking into account, according to an appropriate weighting of each case, the value of the assets, the profits realized, the stock value, the existence of subsidiaries and the prospects of activity.
"The AMF shall examine the proposed offer under the conditions set out in sections 231-21 and 231-22.
“Article 237-3
"When the AMF has declared the draft public offer of withdrawal followed by a mandatory withdrawal, the shareholder or majority group inserts a notice of legal announcements from the place of the company's head office informing the public of the mandatory withdrawal.
“Article 237-4
"The initiator designates a Conservative account content to centralize the compensation operations, as described below as a centralizer.
“Article 237-5
"The initiator who requested the mandatory withdrawal shall deposit the amount corresponding to the indemnification of the securities not presented to the public withdrawal offer in an account blocked open to that effect at the centralizer.
"The allowance is set at a net cost of all costs.
“Article 237-6
"Non-earmarked funds are retained by the centralization authority for ten years and are paid to the Fund for deposits and consignations upon expiry of this period. The funds are at the disposal of the entitled persons subject to the limitation of thirty years for the benefit of the State.
“Article 237-7
"The centralizer, acting on behalf of the shareholder or majority group, maintains annually in a daily economic and financial information, national broadcast, a notice calling on former unindemnified shareholders to exercise their right throughout the period in which the funds are kept.
"When the centralizer has made the payment of all the blocked funds corresponding to the allowances due to holders of securities who have not responded to the public withdrawal offer, it is required to make appropriate advertising in a daily economic and financial information, national broadcast. It is then exempted from the annual advertising provided for in the first paragraph.
“Article 237-8
"If, at the time of the filing of the offer, the initiator has reserved the right to proceed after the offer to the mandatory withdrawal, he shall indicate to the AMF, within a maximum period of ten days of negotiation after the close of the offer, whether or not he renounces the offer. Its decision is made public by the AMF.
"If the initiator decides to proceed with the mandatory withdrawal, he shall notify the AMF of the proposed award for compensation. This price is at least equal to the price of the public withdrawal offer. He is superior if events that may affect the value of the securities concerned have occurred since the declaration of conformity of the public withdrawal offer.
"The decision on the mandatory withdrawal shall be made public by the AMF which specifies its terms and conditions of implementation and in particular the date on which it becomes enforceable, the period between the decision and its execution may not be less than the period referred to in Article R. 621-44 of the monetary and financial code. This decision results in the removal of the relevant securities from the regulated market on which they were admitted.
"The depositaries of account shall carry out the transfer transactions of the securities not presented to the public offer of withdrawal on behalf of the shareholder or majority group that pays the amount corresponding to the compensation of these securities in an open-ended account, under the conditions set out in section 237-9.
“Article 237-9
"When the initiator has exercised the power to make a mandatory withdrawal under the conditions set out in section 237-5, the blocking of funds and the imputation of the allowance to the credit of holders who have not submitted their securities to the public withdrawal offer shall be effected on the date on which the AMF decision becomes enforceable.
« Article 237-10
"If, at the time of the filing of the tender, the Initiator requested the AMF to proceed with the mandatory withdrawal from the close of the offer and whatever the result, the notice of opening of the offer published by the market company specifies the conditions for the implementation of the mandatory withdrawal, including the date of its taking of effect.
"From the close of the public withdrawal offer, the securities concerned are removed from the regulated market on which they were admitted. On the same date, the depositaries of account proceed to the transfer transactions of the securities not presented to the offer on behalf of the shareholder or majority group that pays the amount corresponding to the compensation of these securities in an open-ended account, under the conditions set out in section 237-11.
“Article 237-11
"When the initiator requested the mandatory withdrawal from the tender, the blocking of the funds is effected the day after the close of the offer.
"On the date of blocking the funds, the amount of account credits the accounts of the holders of the securities covered by the mandatory withdrawal of the allowances returned to them.
“Article 237-12
"For the duration of a public withdrawal offer prior to the implementation of a mandatory withdrawal, only the (or) provider(s) of the designated investment services by the initiator of the offer is (are) authorized to acquire on behalf of the offer the securities concerned.
"People who search for securities subject to a public offer followed by a mandatory withdrawal must obtain the said securities only from the (or) designated investment services provider(s) by the initiator of the offer.
“Article 237-13
"Only can benefit from the initiator's management of the brokerage fees within the limit set by the initiator and, where applicable, from the stock exchange tax, the sellers whose securities were registered in their account prior to the opening:
« 1° Either a simplified public offer, which the initiator has explicitly demonstrated its intention, if it reaches 95% of the voting rights of the offer company, to request the implementation of a public withdrawal offer followed by a mandatory withdrawal;
« 2° Either a public withdrawal offer followed by a mandatory withdrawal.
"For this purpose, and within the framework of the simplified public offer mentioned at 1°, a procedure for centralization of orders submitted in response to this offer is established by the market company concerned.
"All claims must be accompanied by a proof of sellers' rights.
“Section 2
"Retreat mandatory after any public offer
“Article 237-14
"Without prejudice to the provisions of section 237-1, at the end of any public offer and within three months after the close of the offer, the initiator of this public offer may be transferred the securities not submitted by the minority shareholders as long as they do not represent more than 5% of the capital or voting rights for compensation from the minority shareholders.
"Under the same conditions, the initiator of the public offer may be transferred the securities giving or being able to give access to the capital, provided that the capital securities that may be created by conversion, subscription, exchange, refund, or in any other way, securities giving or being able to give access to the unsubmitted capital, once added with the existing capital securities not presented, do not represent more than 5% of the sum of the existing capital securities or likely to be
"The implementation of a mandatory withdrawal procedure provided for in this Article shall be subject to the provisions of Articles 237-4 to 237-7 and to the following provisions.
“Article 237-15
"At the time of the submission of the tender, the Initiator shall inform the AMF whether it reserves the right to request the implementation of the mandatory withdrawal once the offer is completed and according to its result.
“Article 237-16
"I. - The AMF shall decide on the conformity of the draft mandatory withdrawal, under the conditions set out in sections 231-21 and 231-22, except in one of the following two cases and provided that the mandatory withdrawal includes the proposed digital regulations at the last offer:
« 1° Compulsory withdrawal follows a public offer subject to the provisions of Chapter II;
« 2° The mandatory withdrawal following a public offer for which the AMF has disposed of the assessment referred to in Article II of Article L. 433-4 of the monetary and financial code and the report of the independent expert referred to in Article 261-1.
“II. - When the AMF determines the compliance of the mandatory withdrawal, the initiator shall, in support of its mandatory withdrawal project, provide an assessment of the securities of the target corporation, carried out according to objective methods used in the event of the disposal of assets, taking into account, according to an appropriate weighting for each case, the value of the assets, the profits realized, the stock value, the existence of subsidiaries and the business prospects.
"The implementation of the mandatory withdrawal shall result, by the persons concerned, in the preparation of a draft information note under the conditions and terms referred to in sections 231-16 to 231-20, with the exception of the description of the intentions of the initiator for the next twelve months. The information note(s) shall be submitted to the AMF visa under the conditions set out in Articles 231-20 and 231-26 and made available to the public under the conditions set out in Article 231-27.
"The information relating to the characteristics, including legal, financial and accounting, of the corporation concerned, the content of which is specified in an AMF instruction, shall be filed with the AMF and made available to the public under the conditions and under the terms and conditions referred to in sections 231-28 to 231-30.
"III. - When the AMF does not decide on the compliance of the mandatory withdrawal, the initiator informs the AMF of its intention to implement the mandatory withdrawal. The AMF publishes the date of implementation of the mandatory withdrawal. The initiator publishes a statement to which it ensures the effective and integral diffusion and whose content is specified in an instruction of the AMF.
“Article 237-17
"When the AMF has declared the mandatory withdrawal project compliant or, where the AMF does not decide on the compliance of the mandatory withdrawal as soon as it informs the AMF of its intention to implement the withdrawal, the shareholder or the majority group inserts in a newspaper of legal announcements of the place of the company's head office a notice informing the public of the mandatory withdrawal.
“Article 237-18
"The declaration of conformity specifies the date on which it becomes enforceable, the time limit between the declaration and its execution cannot be less than the time limit referred to in Article R. 621-44 of the monetary and financial code.
"This declaration results in the removal of the relevant securities from the regulated market on which they were admitted. The blocking of funds and the imputation of the allowance to the credit of holders who have not presented their securities to the public offer are made on the date the AMF declaration becomes enforceable.
"When the AMF does not decide on the compliance of the mandatory withdrawal, the provisions of the preceding paragraph apply from the implementation of the mandatory withdrawal.
"The depositaries of account content shall carry out the transfer transactions of the securities not presented to the last offer on behalf of the shareholder or majority group that pays the amount corresponding to the compensation of these securities in an open-ended account, under the conditions set out in section 237-5.
“Article 237-19
"As soon as the declaration of conformity becomes enforceable or, where the AMF does not decide on its compliance, upon the implementation of the mandatory withdrawal, the securities concerned are removed from the regulated market on which they were admitted. On the same date, the depositaries of account proceed to the transfer transactions of the securities not presented to the offer on behalf of the shareholder or majority group that pays the amount corresponding to the compensation of these securities in an open-ended account, under the conditions set out in section 237-11.
“Chapter VIII
"Public offers for debt securities
not giving access to capital
“Article 238-1
"This chapter applies to public offers on debt securities that do not give access to the capital issued by a company whose head office is located in France and which are admitted to negotiations on a regulated French market.
"The AMF may apply the provisions of this chapter to public tenders for securities issued by companies whose registered office is located outside a Member State of the European Community or a State Party to the Agreement on the European Economic Area and which are admitted to negotiations on a regulated French market.
“Article 238-2
"The principles mentioned in section 231-3 apply to public tenders for debt securities that do not give access to capital.
“Article 238-3
"Public offers on debt securities that do not provide access to capital are only the subject of a draft information note to the AMF.
“Article 238-4
"The persons concerned are subject to compliance with the rules set out in this title from the filing of the draft information note by the initiator and to the publication of the results of the offer.
“Article 238-5
"The persons concerned, their leaders and their councils are obliged to respect the provisions of Article 231-36.
“Article 238-6
"The draft information note shall be submitted to the AMF under the conditions set out in section 231-13 and made available to the public under the conditions and terms referred to in I and II of section 231-16 and shall include the reference provided for in the IV of that section.
“Article 238-7
"At the time of filing with the AMF, the draft information note shall be made available under the conditions set out in section 231-16 and the corporation concerned may issue a release under the conditions set out in section 231-17.
"The AMF may request any information that it considers necessary.
“Article 238-8
"The draft information note prepared by the initiator, the content of which is specified in an instruction by the AMF, includes:
« 1° His identity;
« 2° The content of its offer, in particular:
“(a) The price or parity proposed by specifying the elements necessary for their appreciation;
“(b) The number and nature of the securities he undertakes to acquire;
"(c) The number of titles in the category of titles on which it is offered that the initiator already holds and/or has already redeemed;
"(d) If applicable, the number of securities presented to the offer below which the offer may not have a positive result;
“e) The financing conditions of the transaction and their impact on the assets, activity and results of the companies concerned;
« 3° If applicable, the reasoned advice of the board of directors or supervisory board, or, in the case of a foreign initiator, of the competent body on the interest of the offer or the consequences of the offer for the initiator, its shareholders and its employees; the conditions in which this notice was obtained, the minority members who may request that they be referred to their identity and position;
« 4° The terms and conditions for making publicly available the information referred to in Article 231-28.
"This document also indicates the opinion of an independent expert on the acceptable nature of the proposed price or parity, or the opinion of the presenter establishments on the conformity of the proposed price or parity with the market conditions.
"The information note shall include the signature of the legal representative of the initiator and, where appropriate, the legal representatives of the initiators under the conditions set out in section 231-18.
"It is subject to the AMF's visa and made available to the public under the conditions set out in Articles 231-20, 231-26 and 231-27.
“Article 238-9
"The information relating to the characteristics, including legal, financial and accounting, of the initiator and of the company concerned, the content of which is specified in an instruction by the AMF, is filed with the AMF and made available to the public under the terms and conditions referred to in sections 231-28 to 231-30.
« Article 238-10
"Any information that is complementary to the information note referred to by the AMF must be made available to the public in the form of a statement to which the author ensures the effective and integral dissemination.
“Article 238-11
"Offerings for debt securities may be exempted from the establishment of an information note under the conditions mentioned in section 231-24.
“Article 238-12
"The Member States of the Organisation for Economic Co-operation and Development and the international public bodies of which France is a party are exempted from establishing the draft information note referred to in Article 238-3. »
X. - After section 251-7, a title VI, title VI and articles 261-1 to 261-17 are inserted as follows:
« TITRE VI
« INDEPENDENT EXPERTISE
“Chapter IER
« Appointment of an independent expert
“Article 261-1
"I. - The corporation subject to a public procurement contract shall designate an independent expert when the transaction is likely to generate conflicts of interest within its board of directors, supervisory board or competent body, such as to adversely affect the objectivity of the reasoned notice referred to in section 231-19 or to question the equality of shareholders or holders of the financial instruments that are the subject of the offer.
“This is particularly true in the following cases:
« 1° When the target company is already controlled within the meaning of Article L. 233-3 of the trade code, before the launch of the transaction, by the initiator of the offer;
« 2° When the leaders of the target corporation or the persons who control it within the meaning of Article L. 233-3 of the trade code have entered into an agreement with the initiator of the offer likely to affect their independence;
« 3° When the shareholder who controls it within the meaning of Article L. 233-3 of the Commercial Code does not bring its securities to a public redemption offer launched by the company on its own securities;
« 4° Where there is one or more supply-related transactions that may have a significant impact on the price or parity of the public offer under consideration;
« 5° When the offer deals with financial instruments of different categories and is labelled on price conditions that may affect the equality of shareholders or holders of the financial instruments that are the subject of the offer;
« 6° Where the acquisition of the target corporation is paid by financial instruments referred to in 1° of the I of Article L. 211-1 of the monetary and financial code giving access or may give access, directly or indirectly, to the capital or voting rights of the initiator or to a company belonging to the initiator group, other than shares.
“II. - The corporation shall also designate an independent expert before the implementation of a mandatory withdrawal subject to the provisions of section 237-16.
“Article 261-2
"Any issuer who makes an increase in reserved capital with a denomination in respect of the exchange price above the maximum denomination authorized in the event of an increase in non-preferential subscription capital and conferring on a shareholder, acting alone or in concert within the meaning of Article L. 233-10 of the Commercial Code, the control of the issuer within the meaning of Article L. 233-3 of that Code, means an independent expert who applies the provisions of this title.
“Article 261-3
"Any issuer or initiator of a public procurement offer may designate an independent expert who applies the provisions of this title.
“Article 261-4
"I. - The independent expert must not be in a conflict of interest with the persons involved in public offer or operation and their advice. Without these elements being considered to be an exhaustive list, the cases in which the independent expert is considered in conflict of interest situations are specified in an AMF instruction.
"The independent expert shall not intervene repeatedly with the same host institution or within the same group when the frequency of these interventions is likely to affect its independence.
“II. - The expert shall make a statement attesting to the absence of any past, present or future relationship known to him with the persons concerned with the offer or operation and their advice, which may affect his independence and objectivity of his judgment during the exercise of his mission.
"When there is a situation that creates a risk of conflict of interest, but whose expert considers that it is not likely to affect its independence and the objectivity of its judgment, he mentions and justifies it in his statement.
“Chapter II
"The Expertise Report
“Article 262-1
"I. - The independent expert prepares a report on the financial conditions of the offer or operation, the content of which is specified by an instruction from the AMF. This report includes the declaration of independence referred to in Article 261-4, a description of the diligence performed and an evaluation of the company concerned. The conclusion of the report is presented in the form of a fairness certificate.
"No other form of opinion can be described as a fairness certificate.
“II. - Upon designation, the expert must have sufficient time to prepare the report referred to in I based on the complexity of the operation and the quality of the information available to him. This period cannot be less than fifteen days of negotiation.
“Article 262-2
"I. - In the cases provided for in section 261-2, the issuer shall distribute the report of the independent expert at least ten days of negotiation before the general meeting to authorize the operation or, where the assembly has made use of its delegation power, as soon as possible after the decision of the board of directors or board of directors, as follows:
« 1° Free of charge at the transmitter's seat;
« 2° Publication of a release whose issuer ensures the effective and integral diffusion;
« 3° Publication on the issuer's website when the issuer has such a site.
“II. - The issuer who decides to appoint an independent expert pursuant to section 261-3 publishes the report of expertise in accordance with the terms defined in I.
“Chapter III
« Recognition of professional associations
“Section 1
" Conditions of AMF Recognition
“Article 263-1
"A professional association of independent experts can be recognized, at its request, by the AMF.
“Article 263-2
"I. - The professional association develops a code of ethics that defines the fundamental principles that must respect its members.
"The members of the association can adapt these principles according to their size and organization.
“II. - The Code of Conduct defines, inter alia:
« 1° The principles of independence of experts;
« 2° The competence and means to be disposed of;
« 3° The confidentiality rules to which they are subject;
« 4° Procedures for accepting and carrying out a mission of expertise and quality control of the work of the experts members of the association.
"III. - The Code of Ethics specifies the possible penalties for breaches.
"IV. - The code of ethics can be consulted at any time by any person who applies to it at the headquarters of the association. It is also published on the association's website when the association has such a site.
“Article 263-3
"The association must have the human and material means necessary for the exercise and permanence of its mission.
"Material means include archiving to ensure the preservation of documents, in particular the reports of independent experts members of the association, for at least five years.
“Section 2
“Recognition procedure
“Article 263-4
"The recognition of a professional association is subject to the filing with the AMF of a file including:
« 1° The statutes of the association;
« 2° A curriculum vitae and an extract of criminal record of legal representatives;
« 3° A budget for the association over three years;
« 4° A draft code of ethics;
« 5° A description of the human and technical means to meet the obligations under this chapter.
“Article 263-5
"To recognize an association, the AMF appreciates, in view of the elements of the record referred to in section 263-4, if the association meets the conditions referred to in sections 263-2 and 263-3. The AMF may request the association all the additional information necessary to make its decision.
“Section 3
"FA information
“Article 263-6
"The association shall inform the AMF as soon as possible of the modifications to the characteristic elements contained in the original recognition file, including management, organization and control.
“Article 263-7
"The association shall forthwith inform the AMF of the possible sanctions imposed against one of its members and shall keep at its disposal the minutes of the meetings of the governing bodies and general assemblies.
“Article 263-8
"I. - The AMF can withdraw the recognition of the association when it no longer meets the conditions to which its recognition was subordinated.
"When considering withdrawing the recognition of the association, the AMF informs the association of the reasons for the decision being considered. The association has a period of one month from the date of receipt of this notification to make known its possible observations.
“II. - When the AMF decides to withdraw the recognition of the association, its decision is notified to the association by registered letter with request for a notice of receipt. The AMF informs the public of the withdrawal of recognition by means of a release posted on its site.
"This decision specifies the terms and conditions for delay and implementation of the withdrawal. The association must inform its members of the withdrawal of its recognition. »
XI. - Section 322-68 is amended to read:
(a) At 5° in fine, the sign: "." is replaced by the sign: " ;" ;
(b) After 5°, it is inserted a 6° written as follows:
« 6° Where applicable, where the principal is not a qualified investor, the ability to participate in transactions or to subscribe or acquire financial instruments reserved for qualified investors. »
XII. - After article 322-69, an article 322-69-1 is inserted as follows:
"Before participating for the first time in an operation or in the subscription or acquisition referred to in 6th of section 322-68, as part of an existing management mandate as of September 28, 2006, the investment service providers shall inform their principal by special letter. »
Done in Paris, September 18, 2006.
Thierry Breton
