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422.—(1) In this Act “controller”, in relation to an undertaking (“B”), means a person (“A”) who falls within any of the cases in subsection (2).
(2) The cases are where A holds—
(a)10% or more of the shares in B or in a parent undertaking of B (“P”);
(b)10% or more of the voting power in B or P; or
(c)shares or voting power in B or P as a result of which A is able to exercise significant influence over the management of B.
(3) For the purposes of calculations relating to this section, the holding of shares or voting power by a person (“A1”) includes any shares or voting power held by another (“A2”) if A1 and A2 are acting in concert.
(4) In this section “shares”—
(a)in relation to an undertaking with a share capital, means allotted shares;
(b)in relation to an undertaking with capital but no share capital, means rights to share in the capital of the undertaking;
(c)in relation to an undertaking without capital, means interests—
(i)conferring any right to share in the profits, or liability to contribute to the losses, of the undertaking; or
(ii)giving rise to an obligation to contribute to the debts or expenses of the undertaking in the event of a winding up.
(5) In this section “voting power”—
(a)includes, in relation to a person (“H”)—
(i)voting power held by a third party with whom H has concluded an agreement, which obliges H and the third party to adopt, by concerted exercise of the voting power they hold, a lasting common policy towards the management of the undertaking in question;
(ii)voting power held by a third party under an agreement concluded with H providing for the temporary transfer for consideration of the voting power in question;
(iii)voting power attaching to shares which are lodged as collateral with H, provided that H controls the voting power and declares an intention to exercise it;
(iv)voting power attaching to shares in which H has a life interest;
(v)voting power which is held, or may be exercised within the meaning of subparagraphs (i) to (iv), by a subsidiary undertaking of H;
(vi)voting power attaching to shares deposited with H which H has discretion to exercise in the absence of specific instructions from the shareholders;
(vii)voting power held in the name of a third party on behalf of H;
(viii)voting power which H may exercise as a proxy where H has discretion about the exercise of the voting power in the absence of specific instructions from the shareholders; and
(b)in relation to an undertaking which does not have general meetings at which matters are decided by the exercise of voting rights, means the right under the constitution of the undertaking to direct the overall policy of the undertaking or alter the terms of its constitution.
422A.—(1) For the purposes of section 422, shares and voting power that a person holds in an undertaking (“B”) or in a parent undertaking of B (“P”) are disregarded in the following circumstances.
(2) Shares held only for the purposes of clearing and settling within a short settlement cycle are disregarded.
(3) Shares held by a custodian or its nominee in a custodian capacity are disregarded, provided that the custodian or nominee is only able to exercise voting power attached to the shares in accordance with instructions given in writing.
(4) Shares representing no more than 5% of the total voting power in B or P held by an investment firm are disregarded, provided that it—
(a)holds the shares in the capacity of a market maker (as defined in article 4.1(8) of the markets in financial instruments directive);
(b)is authorised by its home state regulator under the markets in financial instruments directive; and
(c)neither intervenes in the management of B or P nor exerts any influence on B or P to buy the shares or back the share price.
(5) Shares held by a credit institution or investment firm in its trading book are disregarded, provided that—
(a)the shares represent no more than 5% of the total voting power in B or P; and
(b)the credit institution or investment firm ensures that the voting power is not used to intervene in the management of B or P.
(6) Shares held by a credit institution or an investment firm are disregarded, provided that—
(a)the shares are held as a result of performing the investment services and activities of—
(i)underwriting shares; or
(ii)placing shares on a firm commitment basis in accordance with Annex I, section A.6 of the markets in financial instruments directive; and
(b)the credit institution or investment firm—
(i)does not exercise voting power represented by the shares or otherwise intervene in the management of the issuer; and
(ii)retains the holding for a period of less than one year.
(7) Where a management company (as defined in Article 1a.2 of the UCITS directive) and its parent undertaking both hold shares or voting power, each may disregard holdings of the other, provided that each exercises its voting power independently of the other.
(8) But subsection (7) does not apply if the management company—
(a)manages holdings for its parent undertaking or an undertaking in respect of which the parent undertaking is a controller;
(b)has no discretion to exercise the voting power attached to such holdings; and
(c)may only exercise the voting power in relation to such holdings under direct or indirect instruction from—
(i)its parent undertaking; or
(ii)an undertaking in respect of which of the parent undertaking is a controller.
(9) Where an investment firm and its parent undertaking both hold shares or voting power, the parent undertaking may disregard holdings managed by the investment firm on a client by client basis and the investment firm may disregard holdings of the parent undertaking, provided that the investment firm—
(a)has permission to provide portfolio management;
(b)exercises its voting power independently from the parent undertaking; and
(c)may only exercise the voting power under instructions given in writing, or has appropriate mechanisms in place for ensuring that individual portfolio management services are conducted independently of any other services.
(10) In this section “credit institution” means—
(a)a credit institution authorised under the banking consolidation directive; or
(b)an institution which would satisfy the requirements for authorisation as a credit institution under that directive if it had its registered office (or if it does not have a registered office, its head office) in an EEA State.”
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