Important Note

Circulation of the issuer s options, • Leading payment card issuers by card volume | Statista

New European Market Abuse Regime – What Do Non-EU Incorporated Issuers Need to Know?

June 22, I. Introduction Why read this note? If you are an issuer with financial instruments listed on certain EU markets, you are already likely to be caught by the existing European market abuse regime. The changes introduced by MAR will be of interest as they will require changes to existing policies and procedures.

In addition, entities which are not currently caught by the existing regime should be aware of the nature of the extensions in the scope of the new market abuse regime, in particular with respect to the new types of financial instruments, new markets, benchmarks and behaviours which will be caught. Scope of this note: This note summarizes the key changes introduced by the new regime as expected to be implemented in the United Kingdom UKlikely to be of relevance to non-EU incorporated issuers and practical steps to be taken to comply.

It should however be noted that due to the extra-territorial nature of certain aspects of the market abuse offences, actions and behaviours which take place in the UK or indeed in any other non-EU jurisdiction what are banar options be subject to new options theory is sanctions being implemented across other EU member states, if they amount to market abuse in those jurisdictions.

By way of overview, the MAR regime introduces three types of positive obligations or requirements on issuers and four types of prohibitions, which we address in turn below. How has the scope of the regime been extended?

The existing market abuse regime captures "qualifying investments" admitted to trading [4] on an EU regulated market [5]. One of the learnings from the global financial crisis was that there are a broader range of financial instruments and indices and other markets on which a significant volume of market- impactful trades are conducted.

MAR is designed to capture these other instruments, indices markets and related behaviours [6]. Accordingly, issuers with shares, debt or depository receipts ADRs or GDRs listed on the main market of London Stock Exchange or other EU regulated markets would already be covered by elements of the existing regime. A list of the "financial instruments" which fall within the scope of MAR is set out in Annex 1. Going forward, emission allowances [7]which have been reclassified as "financial instruments", will fall within the scope of MAR.

In addition, for purposes of the market manipulation prohibition see section VIII.

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The market manipulation prohibition see section VIII below now extends to "behaviour in relation to benchmarks [9]. This would include but is not limited to credit default swaps and contracts for difference. In addition, the new regime makes it clear that any transaction, order or behaviour concerning any financial instrument as described as being in scope abovewill be covered by MAR irrespective of whether that transaction, order or behaviour takes place on a trading venue or not.

With respect to financial instruments, inside information needs to be of a "precise nature, which has not been made public, relating directly or indirectly to one or more issuers or to one or more financial instruments, and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments. MAR states that the latter limb of the primary definition means "information that a reasonable investor would be likely to use as part of the basis of his or her investment decision".

This definition of inside information is largely similar to the current definition save that the so-called "reasonable investor" test now falls within the primary definition of inside information.

Indeed, in the UK the "competent authority" for MAR, the Financial Conduct Authority FCAappears to be proceeding on the basis that implementation of MAR is not likely to significantly change how the definition of "inside information" is interpreted and applied in the UK as the "reasonable investor" test is currently applied in the assessment of inside information [12].

That having been said, we are circulation of the issuer s options awaiting EU technical standards and ESMA guidance on the definition of inside information. Issuers need to keep themselves apprised of EU technical standards and further guidance due to be published by the European Securities and Market Authority ESMA on the definition of inside information and of developing market practice.

Requirement 1 — Publicly Disclose Inside Information [13] As now, MAR requires an issuer to inform the public as soon as possible of inside information which directly concerns that issuer.

This is essential to avoid insider dealing and ensures that investors and the market are not misled. This European regime already gives rise to challenges for some non-EU incorporated issuers with the disclosure requirement based on a broad definition of inside information and limited scope for delay or withholding of disclosure. The EU regime may be different to the triggers for ongoing market disclosures in other circulation of the issuer s options.

Accordingly, the assessment of and compliance with the applicable continuing obligations can vary and the outcome i. The recital to MAR provides that legitimate interests pertinent to an issuer may relate to ongoing negotiations "where the outcome or normal pattern of those negotiations would be likely circulation of the issuer s options be affected by public disclosure" and where decisions taken or contracts made require the approval of another body to become effective in circumstances where public disclosure before such approval would jeopardise the correct assessment of the information by the public.

These however are just a handful of examples and further input from EU is needed. The European Securities Market Authority ESMA is required to issue guidance establishing a non-exhaustive indicative list of the legitimate interests to issuers and situations in which delay of disclosure of inside information is likely to mislead the public. ESMA is still considering the guidance which has yet to be finalised and approved — hence it is not inconceivable that guidance will not be published until after the new regime comes into force circa early Q3 In particular, if an issuer has chosen to delay disclosure of inside information, it will be required to notify the local regulator being, in the case of the UK, the FCA immediately after announcement of the delayed inside information and must include in that notification details of the inside information subject to delay that was disclosed in the relevant announcement together with the identity of all persons responsible for the delay decision [15].

The FCA has recently published a template notification form based on the mandated EU form that issuers will be required to submit where they have delayed disclosing inside information. Publication: Under MAR, the issuer is required to post and maintain on its website for a period of at least five years, all inside information it is required to disclose publicly.

It is not yet clear whether the requirement to identify communications that contain inside information can be addressed by a general statement or rubric that the communication contains or may contain inside information or whether more granular identification for example where the communication includes inside information relating to clearly different matters or further specificity will be required. Key points: Issuers need to ensure that they have systems in place to comply with notification requirements to relevant local regulators in the event of delay of disclosure of inside information and to maintain appropriate records of decisions made by boards or committees to delay disclosure of inside information.

Issuers should consider whether changes need to be made to the procedures for updating and inputting content on their websites to ensure that the inside information which is required to be publicly disclosed has been "clearly identified". Requirement 2 — Maintain Insider Lists [18] As with the current market abuse regime, MAR requires issuers or persons acting on their behalf or on their account to draw up a list of all persons who have access to inside information and who are working for them under a contract of employment, or otherwise performing tasks through which they have accessed inside information, such as advisors, accountants or credit rating agencies, known as an "insider list.

Electronic format: The new form of insider list is to be kept up-to-date in a prescribed electronic circulation of the issuer s options [19]. Template list: In order to ensure uniformity of approach, ESMA has developed template insider lists [20] use of which, unlike the position today, will be mandatory on all impacted issuers.

Obligations with respect to persons on list: Finally, MAR requires issuers to take all reasonable steps to ensure that any persons included on the insider list acknowledge in writing that they are aware of the obligations involved and sanctions applicable to insider dealing and unlawful disclosure of inside information.

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Key points: Issuers will need to review and update their insider list forms to comply with the new ESMA templates; review existing systems and procedures to ensure that the lists are kept up-to-date in the prescribed electronic format and also review and update existing processes in order to ensure that written confirmations from insiders named on the list, are properly obtained. Issuers should consider seeking from all potential insiders the information required to populate insider lists ahead of 3 July so that insider lists can be created promptly and updated as necessary.

Requirement 3 — PDMRs to disclose dealings [21] The other disclosure requirement regime which has altered under MAR is the requirement which rests on "persons discharging managerial responsibilities PDMRs together with "persons closely associated with them" PCAsto disclose to an issuer and the relevant regulatory authority being the FCA, in the case of the UKevery transaction conducted on their own account relating to the shares or debt instruments of that issuer or derivatives or other linked financial instruments.

Issuers need to note that the scope of the existing disclosure regime has broadened and requirements as to form, timing and permitted exceptions have become stricter. Scope of dealings: The current regime requires PDMRs of issuers of financial instruments and their PCAs to disclose transactions conducted on their own account relating to shares of the issuer, or to derivatives or other financial instruments linked to them.

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Under MAR, PDMRs of issuers and their PCAs must disclose transactions conducted on their own account relating to shares or debt instruments of the issuer or to derivative or other instruments linked thereto. Dealings in debt instruments and related financial instruments of the issuer are accordingly now also generally in scope under MAR however: i the scope of dealings in particular the reference to linked financial instruments appears to cast a wider net than the existing regime; and ii there is a critical area of uncertainty with respect to the application of the regime to debt issuers and GDRs.

In particular, the regulations and guidance do not directly address the position of whether a PDMR of an issuer with debt instruments traded on one of the EU regulated markets or MTF or OTF is required to disclose only dealings in the debt instruments or also dealings of circulation of the issuer s options other instruments of the issuer including non-EU traded shares. We expect that, consistent with the scope and reach of the regime, disclosure of dealings will be limited to those debt instruments within the scope of MAR and not to all instruments of the issuer.

Disclosure Form: Again, with a view to greater harmonization and consistency, disclosures by PDMRs and PCAs will need to follow a specific template prescribed under the EU regulations and issuers will need to ensure that all impacted employees are informed of this. A PDMR and PCA will now have three business days after the date of the dealing or relevant transaction to notify the issuer compared with the current four calendar day window and the issuer has an obligation to disclose this information promptly into the market by way of a regulatory announcement and in any event, also by no later than three business days after the transaction.

The obvious practical challenge for issuers is compliance with the timing requirements in the event that disclosures by PDMRs and PCAs are made at the back-end of the 3 business day window.

It has also stated that it will be prepared to accept over-disclosure i. What is still yet to be clarified is what exchange rates should be applied when calculating whether the relevant annual dealing disclosure thresholds have been met.

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Key points: The results of the various changes to the disclosure regime will require issuers to review and amend existing disclosure obligations on PDMRs and PCAs. In particular, issuers need to i train and educate and have records of the same their PDMRs of the new disclosure obligations; ii implement the new template reporting requirements; iii consider whether to require PDMRs and PCAs to disclose relevant dealings and transactions within a shorter say 1 or 2 business days period than allowed for under the regime; iv consider whether to require disclosures of all relevant dealings and transactions even those below the de minimis threshold; and v consider the compatibility of the new EU regime with any other disclosure or personal dealing see section VI below policies they have in place to comply with domestic rules such as 10b plans, for US issuers.

Prohibition 1 — Restriction on PDMRs dealing during closed periods [24] As under the current regime, PDMRs are prohibited from dealing during "closed periods" subject to certain exceptions, which have been narrowed or tightened under the new MAR regime.

For the UK, the duration of the prohibition currently prescribed under the "Model Code" [25] is 60 days prior to the announcement of preliminary results and annual results, 30 days prior circulation of the issuer s options the announcement of any quarterly results and in the case of half-year results, the period from the end of the relevant half year period to the time of publication.

Market share of leading payment card issuers 2015, by cards in circulation

Narrowing of exceptions to prohibition: The issuer will continue to be permitted to allow dealings in the closed period in certain exceptional circumstances such as financial hardship or pursuant to an employee share scheme or where the beneficial interest does not change. However, other exceptions recognized under the Model Code including dealings connected to a rights issue or takeover offer or dealings pursuant to a trading plan over which the PDMR has no discretion, are no longer expressly recognized under MAR.

There are two key practical points and challenges for issuers under the proposed new regime as below: Withdrawal of the Model Code: Currently, issuers subject to the UK premium listing regime are required to adopt the Model Code or more onerous provisions as their company share dealing code.

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The code provides a helpful market standard and sets out various exceptions to the "closed period" dealing restrictions imposed by the Model Code under the current market abuse regime.

When does the closed period start and end? Some issuers also publish quarterly reports. Under the Model Code, a closed period would apply by reference to the period prior to the publication of the preliminary results announcement and would end on publication of such preliminary results announcement.

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However, as preliminary results announcements are not required under UK rules, for UK issuers, the closed period would not end on the publication of the preliminary results announcement but would continue to run until publication of the final results. Key points: Issuers will need to withdraw or update any personal dealing policies based on the Model Code so that they comply with MAR.

As with the disclosure requirements, PDMRs will need to be properly trained and educated on the scope of the dealing restrictions. MAR does not prescribe or mandate clearance procedures for or restrictions on dealings on PDMRs outside closed periods however issuers should consider whether blanket clearance procedures are desirable nonetheless. Issuers should keep themselves apprised on clarification from the European regulators on the issue of closed periods and preliminary results.

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There is also some lack of clarity as to what dealings are exempt from the prohibition on trading during a closed period. Prohibition 2 — Prohibition on Insider Dealing [27] MAR prohibits any person circulation of the issuer s options includes issuers from engaging or attempting to engage in insider dealing or recommending that another person engage in insider dealing or inducing another person to engage in insider circulation of the issuer s options. As under the current market abuse regime, MAR provides for exemptions for buy-back programmes and stabilisation measures [28].

In addition, MAR sets out certain types of "legitimate behaviour" [29] which are exempted including: i legitimate transactions carried out by market makers; ii dealings by X on behalf of Y where Y is in possession of the inside information but has established effective information barriers between itself and X; or iii where a person has obtained inside information "in the conduct of a public takeover and merger where the company then uses that inside information solely for the purpose of proceeding with that merger or public takeover" provided that at the point of approval of the merger or acceptance of the offer the relevant inside information has been cleansed by publication the so-called "takeover defence".

Stake-building: One of the key areas of uncertainty under MAR is the scope of the takeover defence as the relevant provisions embodying the takeover defence or exemption specifically state that it "shall not apply to stake-building".

Foreign private issuers are exempt from the disclosure requirements of Regulation FD ; Foreign private issuers may use particular registration and reporting forms designed specifically for them; and Foreign private issuers may use a special exemption from registration under the Exchange Act. The particular registration requirements depend upon whether the foreign private issuer is registering a transaction or a class of securities, as outlined below. After registration under either the Securities Act or the Exchange Act, a company becomes subject to periodic reporting requirements, and is required to report information to the Commission in annual and other reports, as discussed below.

There is a view that notwithstanding this, it may be possible for an issuer to rely on the "own knowledge" safe harbour in MAR if the only "inside information" that an issuer has when undertaking a stake-building exercise in the context of a takeover is knowledge of its intention to launch a takeover, however there are difficulties with this analysis too. New conditions to reliance on buy-back and stabilisation exemptions: The scope of availability of the exemptions for buy-back programmes initiated by issuers under MAR are generally the same as under the current market abuse regime.

This is also the case for the stabilisation exemption.