Jalen schreef op 7 november 2024 16:34:
[...]
Ik heb het (even heel summier) nog even opgezocht. AFM heeft er in 2024 een rapport over gepubliceerd (Substantial holdings and gross short
positions), daaruit blijkt dat partijen het naar de mening van AFM niet helemaal zuiver hebben gedaan en acheraf alsnog een short melding heeft moeten doen. Maar verder zonder gevolgen.
Voor de liefhebber:
3.1. Exor-Philips case
The AFM recently found in the Exor-Philips case that Goldman Sachs, the investment
firm involved in the transaction, used the securities lending market to acquire a
substantial shareholding in Philips on behalf of its client Exor. As both the securities
lending agreements and the sale to Exor were effected on the same day, no
notification obligation arose for Goldman Sachs for this part of the transaction (i.e.
no thresholds were crossed). As we explained in the previous paragraphs, the selling
of borrowed shares can result in a reportable substantial gross and/or net short
position. However, in this specific case the market maker exemption of Article 5:46a
Wft appeared to be applicable, in which case Goldman Sachs would not have a
notification obligation for its gross short positions.
The exemption would only be applicable to the gross short position of a position
holder. This means that a notification must still be filed if the position holder disposes
of a position in capital and/or voting rights. This ‘partial’ exemption resulted in a
notification by Goldman Sachs which, in the AFM’s view, did not originally reflect the
actual capital position. Goldman Sachs therefore also reported its short position.
There are arguments for and against the use of the OTC market to acquire substantial
shareholdings (even to the extent permitted by law). From the buyer’s perspective,
it is impossible to acquire a substantial shareholding in the open market without
significantly impacting the price. This makes the OTC route an obvious choice.
However, from the perspective of other market participants not involved in the OTC
transaction, it represents an opaque market practice where transparency measures
are deliberately avoided. Especially in the case of an activist shareholder or hostile
takeover, this lack of transparency could be harmful to the market. Irrespective of
one’s viewpoint, the ability to acquire substantial shareholdings in the OTC market
is a sign of an efficient capital market.