Rules for primary insiders - Borregaard ASA
1. Scope of Application
The Rules for primary insiders applies in addition to Instructions for managing inside information in Borregaard (the inside instructions). The inside instructions apply to all employees and persons with a position of trust in Borregaard. The rules for primary insiders describes the special duties primary insiders are subject to in addition to those that follow from the inside instructions. The duties follow partly directly from the law and partly from what the Board of Directors has decided.
The rules regulate primary insiders’ duties related to transactions in Borregaard’s shares and debt instruments (for example bonds). They also apply to derivatives and other financial instruments related to the shares and debt instruments. In addition they describe primary insiders’ duties in relation to their close associates and reiterates the rules that apply to close associates.
2. Primary Insiders and Close Associates
A primary insider is a “person with management responsibility” in Borregaard. This is defined by law as a person who either
1. is a member of Borregaard’s administration, management or control bodies, or
2. is a manager who is not a member of such a body, but who has regular access to inside information, and who is authorised to make decisions at a managerial level that impact the enterprise’s future development and business strategy.
In practice, primary insiders in Borregaard will be persons who either are board members of Borregaard ASA and Borregaard AS, or who are members of the senior management of Borregaard AS. Whether a manager who is not a member of senior management is a primary insider pursuant to section 2 must be individually assessed. Secretaries for the Board or subcommittees of the Board are not primary insiders in force of their role as secretary¹.
The rules do not directly state whether deputies and observers on the board are primary insiders. The Financial Supervisory Authority has stated that deputies are. The observers on Borregaard’s boards act as deputies for employee-elected board members and are primary insiders for this reason.
It is important to remember that a person is a primary insider even though he or she is not in possession of specific information that is inside information. The role as primary insider is linked to the function the person has in Borregaard.
A primary insider’s “close associates” are:
1. spouse, or a person on equal footing as a spouse pursuant to national law, i.e. a registered partner² or a person with whom the primary insider lives with in a marriage-like relationship (cohabitant)
2. children that the primary insider provides for in accordance with national law, which mainly means underage children
3. other relatives who have shared the same household as the primary insider for one year or more prior to the transaction
4. legal entities (companies), foundations or partnerships that are managed, controlled, established for the benefit of or that have significant coinciding financial interests with, the primary insider or close associates.
The rules for natural persons who are close associates are extensive. Only a few practical examples are mentioned here. The spouse will remain a close associate until divorce is granted even if separation has been taken out. Section 2 includes all underage children, also children who don’t live with the primary insider. The primary insider will ordinarily provide for these as a result of the child support rules. The provision will also include children of legal age if the primary insider has en extended duty to provide for them. Other children of legal age are subject to section 3 and are close associates if they have been a part of the primary insider’s household for one year or more at the time of a transaction. On the same terms, more distant relatives can be close associates, for example parents, siblings, grandchildren, nieces and nephews. The spouse’s or cohabitant’s separate children and relatives are also subject to the provision if they have belonged to the household for a year before the transaction. Children of legal age who reside in a bedsit at a place of study, are in compulsory military service or similar, are not close associates even though their registered address is the same as the primary insider’s.
The provision on legal entities (companies), foundations or partnerships in section 4 is particularly extensive. Wholly-owned investment companies belonging to primary insiders and close associates who are natural persons are clearly close associates. Furthermore, companies where the primary insider or closely associated natural persons have a controlling interest are included. In addition, companies where a primary insider or close associate has a position or a position of trust and either an overall responsibility for, or participates in or can influence the legal entity’s choice of carrying out transactions in Borregaard’s financial instruments. If the primary insider or the closely associated natural person is a board member or in the management of another company, the question of whether also the company is the primary insider’s close associate will depend on which influence he or she has to impact the company’s decision to carry out a transaction with Borregaard’s financial instruments. This will depend on specific assessment. In other words, these other companies are not automatically close associates even if the person who is a primary insider in Borregaard (or a closely associated natural person), also is a primary insider in this other company. It is however important to be aware that a company can be a close associate of the primary insider, even though neither the primary insider nor his or her other close associate has ownership in this company.
If the primary insider is in doubt of whether a natural person, legal entity, foundation or partnership should be considered a close associate, the primary insider may contact Borregaard’s legal director for assistance in assessing the issue.
3. Statutory Obligations: Duty to Report, Ban on Trading and Duty to Inform Close Associates
3.1 Duty to report transactions
Both primary insiders and close associates have an independent duty to report specified transactions in Borregaard’s financial instruments to both Borregaard and the Financial Supervisory Authority. Such reports must be submitted immediately and never later than three business days after the date of the transaction. Immediately means as soon as the transaction is concluded. There must be special reasons for not submitting the report immediately. The primary insider must also remember to clear their own notifiable transactions, see section 4.2 below.
Financial instruments subject to the duty to report
The EU Market Abuse Directive is incorporated in Norwegian law and includes a detailed summary of what is considered a financial instrument. In short, notification must be provided for all transactions carried out on the primary insider’s or close associate’s own account with regard to shares and other listed debt instruments (including bonds) issued by Borregaard. Subscription rights, options and financial derivatives related to Borregaard’s shares or debt instruments are examples of financial instruments. This also applies to options that are allocated as a part of salary terms.
The Market Abuse Directive also applies to trade in emission quotas, auction products based on emission quotas and derivatives associated with these. Borregaard holds emission quotas, but does not meet the threshold that would make Borregaard a “participant on the emission quota market.” Trade with emission quotas is therefore not subject to a duty to report because someone is a primary insider in Borregaard.
Furthermore, investments in collective investment enterprises (for example an investment company) or in composite products are included, if the financial instrument’s exposure to Borregaard’s shares or debt instruments exceeds 20 per cent of the assets in the collective investment enterprise, or of the assets in the portfolio.
Transactions subject to the duty to report
Commission Regulation (EU) 2016/522 Article 10 includes a comprehensive list of which transactions that must be reported. In practice, all imaginable transactions are notifiable, including acquisitions, divestments, short sales, subscriptions or exchange, acceptance of or exercising a share option, including options allocated as a part of salary, and divestment of shares acquired by exercising options.
The same applies to transactions in or related to derivatives, and entry into a difference contract for a financial instrument issued by Borregaard, pledging, borrowing and lending of shares, and inheritance and gift transactions.
The list is not exhaustive. Almost all conceivable transaction forms are subject to the duty to report.
The duty to report arises when the total transaction volume in a calendar years reaches a certain threshold, currently EUR 5,000³. The duty to report applies from the transaction where the amount threshold is reached or exceeded and all subsequent trades in the same calendar year. The threshold is calculated by adding up all transactions without offsetting them. This means that if a primary insider in the same calendar year buys shares for NOK 30,000 and then sells shares for roughly the same amount, the sale is subject to a duty to report.
The amount thresholds apply individually for the primary insider and the individual close associates. In other words, transactions carried out by the primary insider are not to be consolidated with transactions carried out by close associates. When calculating the amount limit for gifts and inheritance, the shares shall be valued at the market price (stock exchange price).
It is the primary insider who is responsible for reporting own transactions to both the Financial Supervisory Authority and Borregaard. Close associates are also responsible for reporting their own transactions. Specific formal requirements apply to the report. The report must be submitted immediately after the transaction has taken place. There is an absolute deadline of three business days if there are special circumstances that prevent the report from being submitted immediately. It is important to note that this is not a normal deadline of three business days. If the report is submitted later than three business days after the transaction, this is a violation of the rules regardless of the reason for the delay.
The duty to report also applies where the primary insider inherits or receives or gives shares or other financial instruments as a gift.
The report to the Financial Supervisory Authority must take place via Altinn (www.altinn.no) and on form KRT-1500 Template for notification of transactions by persons discharging managerial responsibilities (PDMR) and persons closely associated with them. There is a direct link to the Altinn form on the Financial Supervisory Authority’s website⁴. The report to Borregaard must use the designated form⁵ to the IR department by e-mail to firstname.lastname@example.org. The report must include the following information:
− full name of the person with notification requirement
− background for the notification
− name of issuer (Borregaard ASA) and issuer LEI (Legal Entity Identifier) which is:
− description of the financial instrument
− type of transaction
− price and volume of transaction
− holding of shares, options and other financial instruments after the transaction
− time and place (marketplace) for the transaction
Instead of the attached form, a copy of the receipt the primary insider (or close associate) receives when the transaction is reported to the Financial Supervisory Authority via Altinn may be used as notification to the company. Borregaard will use the information in the receipt as the basis for publication of the trade. If the receipt should contain personal information or other superfluous information, this will be removed before publication.
If a transaction has been carried out in the close associate’s own name, the close associate has an independent duty to report the transaction. The same requirements to the report apply, which means that both the Financial Supervisory Authority and Borregaard must be notified, and it must include the same information as a notification from the primary insider.
Borregaard must disclose the transaction to the market immediately, and no later than three days after the transaction has been completed. It is therefore important that Borregaard is notified as soon as possible. Publication is via a notice to the stock exchange. The primary insider or close associate shall have a copy of the notice to the stock exchange.
3.2 Obligation to Inform of Duty to Report and Create a List of Those with a Duty to Report
Borregaard is obliged to inform the primary insider in writing of the primary insider’s duty to report transactions and to inform his/her close associates of the close associates’ duties. This is done by sending all primary insiders these rules in addition to a separate information letter.
Borregaard is obliged to keep a record of all primary insiders and their close associates. The primary insider must therefore inform Borregaard of who their close associates are. Information on all close associates must be provided, regardless of whether they own financial instruments in Borregaard or not. The primary insider must also continuously provide information on changes with regard to who that are close associates. For example, if a child of age moves from home, the primary insider must notify Borregaard of this.
In addition to informing Borregaard of persons that are close associates, primary insiders must inform their close associates in writing of the duty to report transactions to Borregaard and the Financial Supervisory Authority. The primary insider must keep a copy of the information given to close associates. Borregaard has designed a template for such information, which is attached to these instructions.
3.3 Ban on trading in "red" periods for primary insiders
From 1 March 2021 it is prohibited for primary insiders to carry out transactions in Borregaard’s financial instruments in the last 30 days before announcement of Borregaard’s statutory financial reports (so-called “red period”)⁶. The ban on trading follows from the Market Abuse Directive Article 19 no. 11. This entails that a primary insider, either for own or others’ account, directly or indirectly, may not carry out transactions related to Borregaard’s shares or other financial instruments for a period of 30 days prior to publication of Borregaard’s financial reports.
The statutory ban on trading applies in connection with publication of financial information that Borregaard is obliged to publish, which means the report for the 2nd quarter (half-yearly report) and annual report. Because Borregaard reports the 4th quarter with all key information that is expected to emerge from the annual report, the statutory ban on trading applies for the period prior to publication of the report for the 4th quarter. There is no ban on trading in the period before the publication of the annual report.
Borregaard has extended the ban on trading for primary insiders to also apply 30 days before the 1st and 3rd quarters.
If there are exceptional circumstances, Borregaard may grant exemption from the ban on trading. However, the conditions for granting exemptions are strict.
3.4 Criminal liability
Violations of the statutory provisions described above are punishable by fines or imprisonment. This applies to both intent and negligence. Attempts are also criminal offences. Natural persons may be punished by fines of up to NOK 8.4 million for violating the duty to report and ban on trading. Violations of other provisions are punishable with imprisonment up to one year. Unlawful abuse of inside information has a maximum penalty of six years imprisonment.
4. Company Obligations: Obligation to Investigate and Clearance
4.1 Ban on trading during quarterly reporting
As mentioned above, Borregaard has decided that the ban on trading for primary insiders also shall apply for the period 30 days before reporting of results for the 1st and 3rd quarters.
4.2 Clearance obligation and obligation to investigate
A statutory obligation no longer applies for primary insiders to carry out special investigations on whether there is inside information before a transaction is carried out. The primary insider must nevertheless consider whether the information he or she has may actually be inside information. Although the primary insider actually is unaware of a fact, ignorance may be judged to be negligent. In any case, it is enough just to have access to inside information. It is therefore highly recommended that primary insiders carry out certain investigations before a transaction.
Although this no longer is a requirement under Norwegian law, Borregaard’s Board has decided that primary insiders must clear all of their transactions in Borregaard’s financial instruments with the CEO. The request for clearance shall be sent by e-mail (pdf file) on the Form for request of clearance. Close associates are not subject to a clearance obligation.
The CEO can clear the transaction after first performing a proper investigation of whether there is insider information on Borregaard. If the CEO is trading, the transaction must be cleared by the Chairman. The Chairman must apply to the CEO for clearance for their transactions.
Board members may ask the Chairman to clear transactions, but then the Chairman must first ask for clearance from the CEO. The Chairman shall receive confirmation from the CEO in writing before clearance is given to a board member.
Clearance of primary insiders should be on the Form for clearance of primary insiders.
The person making the clearance must specifically consider whether there is insider information on Borregaard. The clearance should state that this has been done. Clearance is normally valid for seven days, i.e. the primary insider must have entered into a binding agreement no later than the seventh day after clearance has been given. If a binding agreement is not entered into by this date, the primary insider must request fresh clearance. The abuse of insider information is still prohibited even if clearance has been given. Clearance does not exempt the primary insider from considering whether the information he or she has access to is inside information.
Rejection of a request for clearance should be on the Form for rejection of clearance of primary insiders. The CEO (or chair of the Board) need not give any grounds for rejection.
Inheritance or gifts – transactions with close associates
To clarify, it is specified that the clearance rules also apply in the event of inheritance or gift transactions, as well as transactions between a primary insider and their close associate.
5. General Caution
The Board encourages primary insiders to refrain from short-term transactions with Borregaard’s shares and debt instruments, and in derivatives and other financial instruments related to these. Primary insiders shall exercise general caution with regard to ownership periods and investments in Borregaard shall be perceived as long-term.
¹ These roles are not stipulated in the rules and the secretaries are therefore not board members
² Registered partnership was introduced in 1993 and repealed on 1 January 2009, as changes to the Marriage Act allowed for same-sex marriage.
³ For conversion from Norwegian kroner, the central bank of Norway’s official closing rate on the day of the transaction is used.
⁵ The form is attached to EU cub-act 2016/523
⁶ The ban on trading does not apply to close associates, except where it is the primary insider who is indirectly carrying out the transaction (for example through a company he or she controls).