DTR 5.2 Acquisition or disposal of major proportions of voting rights
A person is an indirect holder of shares for the purpose of the applicable definition of shareholder to the extent that he is entitled to acquire, to dispose of, or to exercise voting rights in any of the following cases or a combination of them:
Case |
|
(a) |
voting rights held by a third party with whom that person has concluded an agreement, which obliges them to adopt, by concerted exercise of the voting rights they hold, a lasting common policy towards the management of the issuer in question; |
(b) |
voting rights held by a third party under an agreement concluded with that person providing for the temporary transfer for consideration of the voting rights in question; |
(c) |
voting rights attaching to shares which are lodged as collateral with that person provided that person controls the voting rights and declares its intention of exercising them; |
(d) |
voting rights attaching to shares in which that person has the life interest; |
(e) |
voting rights which are held, or may be exercised within the meaning of points (a) to (d) or, in cases (f) and (h) by a person1 undertaking investment management, or by a management company, by an undertaking controlled by that person; 1 |
(f) |
voting rights attaching to shares deposited with that person which the person can exercise at its discretion in the absence of specific instructions from the shareholders; |
(g) |
voting rights held by a third party in his own name on behalf of that person; |
(h) |
voting rights which that person may exercise as a proxy where that person can exercise the voting rights at his discretion in the absence of specific instructions from the shareholders. |
[Note: article 10 of the TD]
Cases (a) to (h) in DTR 5.2.1 R identify situations where a person may be able to control the manner in which voting rights are exercised and where, (taking account of any aggregation with other holdings) a notification to the issuer may need to be made. In the FCA's view:
- (1)
Case (e) produces the result that it is always necessary for the parent undertaking of a controlled undertaking to aggregate its holding with any holding of the controlled undertaking (subject to the exemptions implicit in Case (e) and others in DTR 5.4);
- (2)
Case (f) includes a person carrying on investment management and which is also the custodian of shares to which voting rights are attached;
- (3)
Case (g) does not result in a Unitholder in a collective investment scheme or other investment entity being treated as the holder of voting rights in the scheme property (provided always such persons do not have any entitlement to exercise, or control the exercise of, such voting rights); neither are such persons to be regarded as holding shares "indirectly";
- (4)
Case (h), although referring to proxies, also describes and applies to a person undertaking investment management, and to a management company, and which is able effectively to determine the manner in which voting rights attached to shares under its control are exercised (for example through instructions given directly or indirectly to a nominee or independent custodian). Case (e) provides for the voting rights which are under the control of such a person to be aggregated with those of its parent undertaking.
A person falling within Cases (a) to (h) is an indirect holder of shares for the purpose of the definition of shareholder. These indirect holdings have to be aggregated, but also separately identified in a notification to the issuer. Apart from those identified in the Cases (a) to (h), the FCA does not expect any other significant category "indirect shareholder" to be identified. Cases (a) to (h) are also relevant in determining whether a person is an indirect holder of financial instruments within DTR 5.3.1R(1)(a)2 which result in an entitlement to acquire shares.
DTR 5.1.2 R and case (c) of DTR 5.2.1 R do not apply in respect of voting rights attaching to shares provided to or by the Bank of England3 in carrying out its functions as a monetary authority3, including shares provided to or by the Bank of England3 under a pledge or repurchase of similar agreement for liquidity granted for monetary policy purposes or within a payments system provided:
- (1)
this shall apply only for a short period following the provision of the shares; and
- (2)
the voting rights attached to the shares during this period are not exercised.
[Note: article 11 of the TD.]
- (1)
A person who is required to make a notification may, without affecting their responsibility, appoint another person to make the notification on his behalf.
- (2)
Where two or more persons are required to make a notification such persons may, without affecting their responsibility, arrange for a single notification to be made.
[Note: article 8(3) of the TD implementing Directive.]