In the previous article on information obligations related to insolvency and restructuring proceedings, the focus was on information obligations on public companies operating within the regulated market (Article available HERE). In these discussions, we will draw attention to the obligations regarding public companies operating within an alternative trading venue i.e. New Connect and Catalyst systems, which will vary depending on whether trading platforms are operated by the Warsaw Stock Exchange or BondSpot S.A.
Legal basis for public company information obligations
As a reminder, it should be pointed out that in accordance with the provisions of the Regulation of the Minister of Finance dated 29 March 2018 on current and periodic information published by issuers of securities and conditions for recognising as equivalent information required by the laws of a non-member state (Regulation of the Minister of Finance), Regulation (EU) 596/2014 dated 16 April 2014 on market abuse (market abuse Regulation) and repealing Directive 2003/6 and Commission Directives Directive 2003/124,Directive 2003/125 and Directive 2004/72 („the MAR Regulation) and Act dated 29 July 2005 public offerings and conditions for the introduction of financial instruments to the organised trading system and public companies, public public limited companies have a number of information obligations.
Information obligations for public companies operating under an alternative trading venue (New Connect)
In the case of companies operating under an alternative trading venue (New Connect), account should be taken of the provisions contained In Annex 3 to the Rules of Procedure of the Alternative Trading System on current and periodic information published on the alternative trading venue on the NewConnect market and the regulations of the MAR Regulation.
In view of the fact that the regulations contained in the above mentioned provisions are applicable, Annex 3 to the ASO Rules of Procedure do not indicate expressis verbis to the company's information obligation relating to actions undertaken in the context of insolvency or restructuring proceedings, the provisions of the MAR Regulation relating to the publication of confidential information will apply to the information obligation relating to this scope.
Therefore, the subject matter of information published on the basis of Article 17(1) MAR regulations will include such events as:
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- the submission of an application for bankruptcy or an application for restructuring proceedings and the rejection or rejection of such applications by the court;
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- the establishment of a temporary judicial supervisor, the establishment of a forced board, the appointment of a bankruptcy administrator;
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- issuing a bankruptcy order or a decision to open restructuring proceedings, amending the abovementioned provisions;
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- discontinuance of proceedings bankruptcy or restructuring;
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- the prohibition of initiating resolution;
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- approval of the system; refusal of approval of the system.
In addition, the additional information obligation in the scope of the above mentioned companies listed on the New Connect is to include in the information document and in the simplified information document in the chapter ‘Emittance data’ information on insolvency, restructuring or liquidation proceedings initiated against the issuer. This obligation arises from section 10 and 19 Annex 1 to the Rules of the Alternative New Connect Trading System.
Information obligations for public companies dealing with debt securities issued under the Catalyst system
First, It should be indicated that if a company as a debt issuer is listed within an alternative trading venue or on a regulated market (GPW), it shall be subject to the reporting scope applicable to the type of market concerned. This also applies to the obligation to make public the events relating to insolvency or restructuring proceedings.
As regards entities operating within the BondSpot S.A. trading platform, the application of the regulations contained in the Rules of the Alternative Trading System as adopted by Resolution No. 86/O/17 The Management Board of BondSpot S.A.
dated 13 April 2017 (codified text by date 8 January 2019, hereinafter referred to as ‘BondSpot Regulations’). As no group of events relating to insolvency or restructuring proceedings has been distinguished under the rules relating to the publication of current and periodic reports, the MAR Regulation will apply in this respect.
i.e., disclosure of confidential information on the basis of Article 17(1). related to actions undertaken in insolvency or restructuring proceedings.
It should be further noted here that the Rules of Procedure of the Alternative Trading System as adopted by Resolution No. 86/O/17 The Management Board of BondSpot S.A. dated 13 April 2017 Under section 10 provides for the information document to be included in the chapter ‘Emmittance data’ of proceedings initiated against the issuer: bankruptcy, arrangement or liquidation.
By way of derogation from the information obligations themselves, it should be stressed that according to section 14 section 2 point 4 BondSpot’s rules of procedure require a company to exclude debt instruments from trading on the Market in the event of a declaration of bankruptcy of an issuer or a decision to dismiss a bankruptcy application by a court because the issuer’s assets are not sufficient or sufficient only to satisfy the costs of proceedings, or an order for discontinuance of proceedings bankruptcy because the issuer's assets are not sufficient or sufficient only to satisfy the costs of proceedings
Author: Hanna Żołnierkiewicz
Lawyer in the Legal Department. From 2017 associated with Russell Bedford Dmowski & Partners Law Firm Sp.k. He has experience in legal services to entrepreneurs in terms of merger, division and transformation of companies, bankruptcy, restructuring and capital market law. He runs the day-to-day handling of commercial law companies, including drafting corporate documentation, both in Polish and English. He also represents clients before the general courts in economic and civil law cases.