POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
Apart from this, insider dealing and market manipula - tion legislation may have an impact on the feasibility of these kinds of share purchases. 4.2 Material Shareholding Disclosure Threshold Material shareholdings in public companies and changes to those shareholdings must be publicly dis - closed and notified to the PFSA/KNF and the com - pany involved. The notification requirement applies to any share - holder who: • directly or indirectly reaches or exceeds the thresh - olds of 5%, 10%, 15%, 20%, 25%, 33%, 33⅓%, 50%, 75% or 90% of the total votes in a public company; or • held at least 5%, 10%, 15%, 20%, 25%, 33%, 33⅓%, 50%, 75% or 90% of the total votes exercisable in a public company and, as a result of a reduction of its equity interest holds 5%, 10%, 15%, 20%, 25%, 33%, 33⅓%, 50%, 75% or 90% or less of the total votes, respectively. The notification has to be made within four business days of the date of the change or the date on which the shareholder became aware of the change or, acting diligently, should have become aware of the change or, in the case of transactions executed on the regulated market or in the alternative trading system, within six trading days of the date of the transaction. These notification requirements also apply to a share - holder in the following circumstances. • Held over 10% of the total votes and this share - holding has changed by at least: (a) 2% of the total votes, in the case of a public company whose shares have been admitted to official listing; or (b) 5% of the total votes, in the case of a public company whose shares have been admitted to trading on a regulated market or admitted to an alternative trading system. • Held more than 33% of the total votes and this shareholding has changed by at least 1%.
Furthermore, for the purposes of the notification requirements Polish law requires that a parent entity must include the number of votes held by its subsidi - aries when determining its shareholding in the target company. Therefore, in determining whether these thresholds have been reached or exceeded, every entity must take the shares held by its direct and indi - rect subsidiaries into account. The law also provides for other rules extending the disclosure obligations to other persons/entities, eg, persons/entities acting in concert. 4.3 Hurdles to Stakebuilding The rules regarding the disclosure of significant stakes are set out in the law implementing the relevant EU Directive and may not be amended by the target com - pany in its articles of association, by-laws or any other way. However, there are some protective measures compa - nies may take in order to minimise the risk of a takeo- ver. Although these protective measures are not very popular among those identified on the Polish market, the most common include: • the issuance of privileged shares; • introducing individual rights (eg, to appoint mem - bers of the supervisory board or management board) or providing limits on stakes from which shareholders could vote during shareholders’ meetings, under Polish law; and • setting out a limit (not lower than 10% of the total number of votes) above which a shareholder will not be able to cast votes in the articles of associa - tion. For example, if the limit is set at 10% and the shareholder holds 12% of votes it will only be entitled to cast 10% of the votes). All these measures require special provisions in the articles of association of a listed company and their introduction may be needed prior to the listing of the company in question. 4.4 Dealings in Derivatives Dealings in derivatives are allowed in principle. Certain limitations may apply in respect of specific types of instruments.
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