Circular 8/2015 of the National Securities Market Commission approving notification models for significant shareholdings, directors and their close links, issuer transactions in own shares, and other models

BOLETÍN OFICIAL DEL ESTADO
Núm. 23 Wednesday, January 27, 2016 Sec. I. Page 6917
I. GENERAL PROVISIONS
COMISIÓN NACIONAL DEL MERCADO DE VALORES
727 Circular 8/2015, of December 22, of the Comisión Nacional del Mercado de Valores, approving the notification models for significant shareholdings, for directors and their close links, for issuer transactions in own shares, and other models.

In accordance with Articles 39, 43, and 47.4 of Royal Decree 1362/2007, of October 19, developing Law 24/1988, of July 28, on the Securities Market, regarding transparency requirements for information on issuers whose securities are admitted to trading on a regulated secondary market or another regulated market of the European Union, and Article 9 of Royal Decree 1333/2005, of November 11, developing Law 24/1988, of July 28, on the Securities Market, regarding market abuse, the Comisión Nacional del Mercado de Valores is empowered to approve notification models and develop the necessary technical specifications for the application of the provisions in Titles II and III of Royal Decree 1362/2007, of October 19, and in Chapter III of Royal Decree 1333/2005, of November 11, as well as to regulate procedures to avoid duplication of notifications by the same person in cases where the obligation to notify established in Article 9 of Royal Decree 1333/2005, of November 11, coincides with that provided in Article 31 of Royal Decree 1362/2007, of October 19.

This Circular aims to adapt the voting rights notification models previously included in Circular 2/2007, of December 19, of the Comisión Nacional del Mercado de Valores, approving notification models for significant shareholdings, for directors and executives, for issuer transactions in own shares, and other models, to the new communication obligations established in Royal Decree 1362/2007, of October 19, as amended by Royal Decree 878/2015, of October 2, on compensation, settlement, and registration of negotiable securities represented by book entries, on the legal regime of central securities depositories and clearing houses, and on transparency requirements for issuers of securities admitted to trading on a regulated secondary market, which, among other aspects, incorporates into our legal order Directive 2013/50/EU of the European Parliament and of the Council of October 22, 2013, amending Directive 2004/109/EC of the European Parliament and of the Council on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, Directive 2003/71/EC of the European Parliament and of the Council on the prospectus to be published when securities are offered to the public or admitted to trading, and Commission Directive 2007/14/EC laying down detailed provisions for the application of certain provisions of Directive 2004/109/EC.

The new model corresponding to the notification to be made by significant participants in listed companies has been adapted taking into account the new model of notification of significant shareholders published by ESMA (ESMA/2015/1597) on October 22, 2015, with the main objective of achieving a higher degree of convergence and harmonization regarding the information shareholders must provide, as well as facilitating investors, regardless of the EU country in which they invest, the fulfillment of their notification obligations. This model takes into account the nature of the different instruments on which notifications must be made, as well as the obligation to notify aggregated positions of voting rights associated or attributed to both shares and other financial instruments, in accordance with Article 28 bis of Royal Decree 1362/2007, of October 19.

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BOLETÍN OFICIAL DEL ESTADO
Núm. 23 Wednesday, January 27, 2016 Sec. I. Page 6918 The new notification model for directors holding shares or financial instruments linked to shares (Model II) has also taken the ESMA model as a reference, although it had to be adapted to incorporate the specific notification obligations of these subjects, arising from market abuse regulations.

The notification obligations of directors and their close links are clarified so that, from the entry into force of this Circular, directors must notify, through Model II, all operations carried out, as they have been doing until now; while those operations carried out by close links of the director, whose voting rights cannot be assigned to the director, must be notified by the close link itself through the new Model III.

On the other hand, given that the notification obligations of the issuer's executives and their close links are those established in Article 9 of Royal Decree 1333/2005, of November 11, notifications must be made by each of them, rather than the executive including in their notification the operations carried out by their close links. In any case, both the executive and their close links must notify the operations carried out through Model III.

As an integral part of each of the Models, the Circular includes, in order to facilitate their proper completion, instructions that explain in detail how to proceed with each section of the corresponding model, so that the principles required in Royal Decree 1362/2007, of October 19, and in Royal Decree 1333/2005, of November 11, are respected.

Model I of this Circular, which replaces and groups into one Annexes I and II of Circular 2/2007, collects the obligation to send information regarding voting rights that applies to significant shareholders who do not have the status of directors of the issuer, who must inform about their final position in voting rights associated with both shares and financial instruments that confer the right to acquire already issued shares that confer voting rights or that have an economic effect similar to said instruments, as well as the date on which they reached or crossed any of the notification thresholds established.

This model incorporates specific sections to inform about the conclusion of agreements for the concerted exercise of voting rights, which include the identification of the participants and the percentage of voting rights individually held by each of them.

This Model I maintains a specific section to indicate if the obligated subject has its residence in a tax haven, collecting the specialty, already existing in previous regulations, of establishing the notification threshold at 1% and its successive multiples.

The special nature of the position held by directors and executives in an issuer and the relationship of all of them with their respective close links justifies the establishment of specific information requirements to comply with the obligations provided in Article 9 of Royal Decree 1333/2005, of November 11, and in Royal Decree 1362/2007, of October 19. Hence the need to develop specific notification models for these obligated subjects; specifically, Model II, which replaces and groups into one the former Annexes III and IV of Circular 2/2007, of December 19, and Model III, which replaces Annex V of the same.

In Model II, applicable to directors, the final position, direct and indirect, of voting rights, attributed to both shares and other financial instruments, must be identified, so all operations carried out by the director, directly or by other persons (in some cases they will have the status of close links), will be included, provided that the corresponding voting rights belong to the director himself, as he is the one who has the discretion to exercise those rights.

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BOLETÍN OFICIAL DEL ESTADO
Núm. 23 Wednesday, January 27, 2016 Sec. I. Page 6919 On the contrary, this information is not required in Model III applicable to executives and their close links and to other close links of directors (those links whose voting rights relating to shares and financial instruments are not attributable to the director). In said Model, close links must identify the executive(s) or director(s) with whom they maintain a link established in Article 9 of Royal Decree 1333/2005, of November 11.

The particularity that a person, natural or legal, is a close link of more than one executive or director has been taken into account. In this case, they must identify all of them and indicate the type of link that relates them to each one.

Models I and II maintain a specific section to reflect the delegation of voting rights. The notification period in this case will begin to run from the next business day following the holding of the general meeting.

The last three Models of this Circular collect the notification obligations for treasury shares, for the request of exemption from notification for market makers, and for remuneration systems, none of which are modified with respect to those established in the previous Circular 2/2007, of December 19, except for the model number to maintain the consecutive numbering. Despite not undergoing any modification, it has been opted for their incorporation in this new Circular in order to avoid regulatory dispersion.

Taking into account IT advances and the need to process information adequately and quickly, this Circular establishes the possibility that notification models can be submitted electronically, which will be mandatory for the notification of operations carried out with own shares. Nevertheless, the option remains that the submission of notifications is not made through these means.

Finally, the fourth provision of this Circular sets the maximum deadlines that must be observed for the submission of the corresponding notification to the Comisión Nacional del Mercado de Valores.

By virtue of the authorization received, the Council of the Comisión Nacional del Mercado de Valores, after a report from its Advisory Committee, in its meeting of December 22, 2015, has approved the following Circular:

First Provision. Notification Models.

1. The notifications that must be made in compliance with the provisions of Title II and Title III of Royal Decree 1362/2007, of October 19, developing Law 24/1988, of July 28, on the Securities Market, regarding transparency requirements for information on issuers whose securities are admitted to trading on a regulated secondary market or another regulated market of the European Union, and the provisions of Article 9 of Royal Decree 1333/2005, of November 11, developing Law 24/1988, of July 28, on the Securities Market, regarding market abuse, must be carried out by completing the corresponding model included in this Circular:
   a) Model I will apply to significant shareholders or other persons who do not have the status of directors of the issuer. In this Model, the obligated subject will aggregate all voting rights they possess, associated or attributed to both shares and other financial instruments that confer the right to acquire already issued shares that confer voting rights or that have a similar economic effect. b) Model II will apply to directors of issuers, and in it they will inform of all operations carried out on shares or other financial instruments linked to said shares, both directly and indirectly, including those carried out by those close links, as defined in Article 9 of Royal Decree 1333/2005, of November 11, in which the discretion to exercise voting rights corresponds to the director, as well as of the final resulting position in terms of voting rights attributed to both shares and other financial instruments linked to said shares. This circumstance will be considered at least when the close link of the director is the spouse under a community of property regime, children under parental authority, controlled companies, and interposed persons. In these cases, it will not be necessary for these links to submit an individual notification once the director themselves informs it and the voting rights are assigned to them.

Furthermore, aggregated information will be provided on the proportion of voting rights, both direct and indirect, attributed to shares or other financial instruments linked to said shares, that the director holds at the time of their appointment and dismissal as an administrator. c) Model III applies to executives of issuers and their close links, as well as to those other close links of the issuer's directors whose position in voting rights is not imputable to the director themselves because the director does not have the discretion to decide the direction of the vote of those rights, and in it they will inform of both operations carried out on shares and on financial instruments linked to shares. d) Model IV applies to issuers that must notify operations carried out with own shares. e) Model V applies to market makers who wish to avail themselves of the exception to the obligation to notify significant shareholdings. f) Model VI will be completed to inform about remuneration systems for administrators and executives approved by an issuer. Those systems will be communicated to the Comisión Nacional del Mercado de Valores directly or through the issuer.

2. Notification obligations corresponding to this Circular will only be considered fulfilled when they are made in accordance with the models of this Circular completed in all their aspects, except those that are not mandatory.

3. In any case, all data appearing in said models and applicable to the case in question must be completed. The Supplementary Information Sheet attached to each notification model must be sent to the Comisión Nacional del Mercado de Valores along with the corresponding model, even if such information is not made public.

Second Provision. Form of submission of notifications.

1. For the incorporation of the notifications referred to in this Circular into the public register referred to in Article 238.f) of the consolidated text of the Securities Market Law approved by Royal Legislative Decree 4/2015, of October 23, the notification models for operations carried out with own shares must be submitted electronically; the rest of the notifications may be submitted indistinctly by electronic means or on paper support.

Notifications must be presented in accordance with the applicable notification model, duly signed. If the presentation is by electronic means, the signature will be electronic and in accordance with the requirements established by the CNMV in its Electronic Register.

2. When notifications are presented on behalf of the obligated subject, the Comisión Nacional del Mercado de Valores may require the representative or declarant to prove their powers. In the case of legal persons, the sufficiency of representation will be presumed when the person presenting the notification is the sole or joint administrator, a member of the board of directors, the secretary of the board of directors, or a general manager or equivalent position.

3. The obligation to submit will be considered fulfilled when the obligated subject receives by electronic means from the CNMV a "proof of receipt of entry in the CNMV Electronic Register" for the corresponding notification.

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BOLETÍN OFICIAL DEL ESTADO
Núm. 23 Wednesday, January 27, 2016 Sec. I. Page 6921 Third Provision. Subject lacking legal personality.
When the acquirer, transferor, or holder of shares or financial instruments with voting rights attributed lacks legal personality, the management company or whoever holds the representation or administration over the estate will be obliged to send the notification on their behalf.

Fourth Provision. Deadlines.

1. In accordance with Article 35 of Royal Decree 1362/2007, of October 19, significant shareholders will make the corresponding notification within a maximum period of four business days from the date on which the obligated person has known or should have known the circumstance giving rise to the obligation to notify. For trading operations on the market, the period will begin to run no later than two business days following the transaction. For other operations, the period will count from the next business day following the date on which it takes effect.

Notwithstanding the foregoing, in accordance with Article 9.4 of Royal Decree 1333/2005, of November 11, and Article 35.9 of Royal Decree 1362/2007, of October 19, directors and executives and their close links must make the corresponding notification within five business days following the day on which the transaction takes place.

2. If the business day on which the notification period ends is an administrative holiday, the notification period will be understood to be extended until the next business day.

Fifth Provision. Exclusion from trading.
The Comisión Nacional del Mercado de Valores, ex officio, will remove from its public registers all communications of significant shareholdings of companies whose shares are excluded from trading on a regulated secondary market and other regulated markets of the European Union.

Sole Repealing Provision.
Circular 2/2007, of December 19, of the Comisión Nacional del Mercado de Valores, approving notification models for significant shareholdings, for directors and executives, for issuer transactions in own shares, and other models, is hereby repealed.

Sole Final Provision.
This Circular will enter into force the day following its publication in the "Boletín Oficial del Estado". Obligated subjects must use the new models approved by this Circular for notifications they must present from March 31, 2016.

Madrid, December 22, 2015.–The President of the Comisión Nacional del Mercado de Valores, María Elvira Rodríguez Herrer.

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BOLETÍN OFICIAL DEL ESTADO
Núm. 23 Wednesday, January 27, 2016 Sec. I. Page 6922
ANNEX
Model I. Notification of significant shareholdings for obligated subjects who do not have the status of director of the issuer.
Model II. Notification of directors.
Model III. Notification of Executives (other than directors) and their close links and other links of directors.
Model IV. Notification of operations carried out with own shares.
Model V. Request for exemption from notification of significant shareholdings applicable to market makers.
Model VI. Notification of remuneration systems granted by an issuer whose shares are admitted to trading on a regulated market domiciled in the European Union, to its administrators or executives.

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BOLETÍN OFICIAL DEL ESTADO
Núm. 23 Wednesday, January 27, 2016 Sec. I. Page 6923 MODEL I NOTIFICATION OF SIGNIFICANT SHAREHOLDINGS (which do not have the status of directors of the issuer) (must be sent to the issuer and to the Comisión Nacional del Mercado de Valores)i

1. Identification of the issuer ii:

2. Reason for notification (mark what applies):
   [ ] Acquisition or transfer of voting rights Operation carried out on a regulated market □ [ ] Acquisition or transfer of financial instruments [ ] Modification in the number of voting rights of the issuer [ ] Other reasons (specify)iii:

3. Identification of the obligated subjectiv :
   Surname and name or Corporate Name City and country of registered office (if applicable):
   ( ) Conclusion of an agreement for the concerted exercise of voting rights v Surname and name or Corporate Name of the agreement participants Number of voting rights % voting rights

4. Identification of the shareholder(s) or holder of the financial instrument (if different from that indicated in section 3) (see 4 bis of the annex)vi:

5. Date on which the threshold was crossed or reached vii:

6. Total position of the obligated subject:
   % voting rights attributed to shares
   (total 7.A)
   % voting rights via financial instruments
   (total 7.B.1 + 7.B.2)
   Total %
   (7.A + 7.B)
   Total number of voting rights of the issuer viii Resulting situation on the date on which the threshold was crossed or reached

Position of the previous notification (if applies)

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BOLETÍN OFICIAL DEL ESTADO
Núm. 23 Wednesday, January 27, 2016 Sec. I. Page 6924
7. Detail of the resulting situation of the notification on the date on which the threshold was
crossed or reached ix
A: Voting rights attributed to shares
Class or type of shares
ISIN Code x
(if possible)
Number of voting rightsxi % voting rights
Direct
(Art 9 of Directive
2004/109/EC and art 23
RD 1362/2007)
Indirect
(Art 10 of Directive
2004/109/EC and art 24
RD 1362/2007 )
Direct
(Art 9 of Directive
2004/109/EC and art 23 RD
1362/2007 )
Indirect
(Art 10 of Directive
2004/109/EC and art 23 RD
1362/2007)

SUBTOTAL A
B 1: Financial instruments according to Art. 13(1)(a) of Directive 2004/109/EC and art. 28.1 a) of RD 1362/2007 Type of financial instrument Last date of maturityxii Exercise or exchange periodxiii Number of voting rights that can be acquired if the instrument is