24/05/2021 21:29
11/2021 – Public disclosure of delayed inside information
Pursuant to Article 17 (1 and 4) of REGULATION (EU) No 596/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL. of 16 April 2014. on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (“MAR”), the Management Board of Trakcja S.A. (the “Company” or the “Issuer”) (the “management Board”) should like to communicate inside information delayed on 26 November 2020 concerning the receipt of notice from Agencja Rozwoju Przemysłu S.A. [Industrial Development Agency JSC] (“ARP”) and PKP PLK S.A. (“PKP PLK”) under Article 87 (1) (5) read jointly with Article 69 (1) (1) read jointly with Article 69b (1 and 2) of the Act of 29 July 2005 on Public Offerings – that PKP PLK has exceeded 15% of the total number of votes in the Company as a result of concluding an understanding between ARP and PKP PLK concerning, inter alia, the exercise of voting rights by ARP by reason of stock held in the Company’s share capital in the manner agreed with PKP PLK, as regards the taking over of shares of stock of the new issue by PKP PLK (“Inside Information”). Public disclosure of the delayed Inside Information follows from receipt by the Company on 24 May 2021 of notice from ARP, as to which the Company provided detailed information in current report no. 10/2021, to the effect that ARP, PKP PLK and the State Treasury of the Republic of Poland – Minister of Infrastructure concluded a conditional understanding on the potential involvement of PKP PLK with the Company. In the Company’s opinion, the conditions for delaying public disclosure of Inside Information have ceased and consequently, the Company is obliged to disclose the Inside Information to the public without delay.
Contents of the delayed Inside Information
“On 25 November 2020 Trakcja S.A. (the “Issuer”, the “Company”) received notice from Agencja Rozwoju Przemysłu S.A. [Industrial Development Agency JSC] (“ARP”) and PKP PLK S.A. (“PKP PLK”) that PKP PLK has exceeded 15% of the total number of votes in the Company as a result of concluding an understanding between ARP and PKP PLK concerning, inter alia, the exercise of voting rights by ARP by reason of stock held in the Company’s share capital in the manner agreed with PKP PLK, as regards the taking over of shares of stock of the new issue by PK PLK (the “Understanding”).
At the same time, pursuant to Article 71 of the Act on Public Offerings, the Company filed an application with the Financial Supervision Authority for the purpose of exempting the Company from the responsibility of public disclosure of the information specified in Article 70 (1) of the Act on Public Offerings and disclosure to the Giełda Papierów Wartościowych w Warszawie S.A. [Warsaw Stock Exchange], as the disclosure of such information before clarification of the conditions, manner and scope of capital involvement on part of PKP PLK with the Company, would, to a significant degree, present a risk to the possibility of the final determination of such conditions, manner and scope of capital involvement on part of PKP PLK, and accordingly, disclosure might have caused material damage to the Company’s interests, that is, to the possibility of a capital injection for the Company from a stable industry investor, which would permit further long-term growth”.
In reaching the decision on delaying the Inside Information on 26 November 2020, the Company’s Management Board made the following assessment of conditions for delaying Inside Information:
“In the Management Board’s opinion, delay in the disclosure of the aforementioned Inside Information meets the condition set out in MAR and in guidelines on delay in the disclosure of inside information of the European Securities and Markets Authority (ESMA) of 16 October 2016 (“ESMA Guidelines”).
In the Management Board’s opinion, immediate public disclosure of the Inside Information could have violated the Company’s legitimate interests : from the information obtained by ARP from PKP PLK during the course of discussions on concluding the Understanding and communicated to the Company by ARP, disclosure of the very fact that it had been concluded and its parties (in particular, PKP PLK data as a potential investor), as well as the provisions of this Understanding- at that very moment, before clarification of the conditions, manner and scope of capital or financial involvement on part of PKP PLK as a new investor in the Company, significantly jeopardizes the final determination of detailed rules of support from PKP PLK to the Company, and by the same token jeopardises the Company’s interests, that is, solicitation of financial support and of a stable industrial investor for the Company, assuring its long-term growth.
Immediate disclosure of information on concluding the Understanding between ARP and PKP PLK may endanger ongoing negotiations and have an adverse impact on the result, and consequently may lead to a violation of the Company’s lawful and legitimate interest – there is justified concern that the signatories to the Understanding may back out of taking further measures connected with any potential capital injection transaction in the Company’s favour were information on concluding the Understanding to be disclosed forthwith.
In the Management Board’s opinion, there were no conditions indicating that a delay in disclosure of the Inside Information may be misleading to the public in particular, due to the fact that the Company has never before informed about the discussions between ARP and PKP PLK (having no such knowledge), and no information on plans of conducting such discussions had appeared in the public domain, and discussions between the aforementioned entities are at an early stage and the final conditions of PKP PLK’s capital or financial involvement as a potential investor in the Company have not been determined in a final manner.
Given the above, in the Management Board’s opinion, there were no grounds for deeming that a delay in the public disclosure of inside Information is incompatible with market expectations based on the Company’s to-date communications.
The Issuer has introduced in-house Rules on the Circulation of Inside Information at Trakcja S.A., which defines the principles of circulation and handling of inside information in line with:
- MAR provisions,
- COMMISSION IMPLEMENTING REGULATION (EU) 2016/347. of 10 March 2016. laying down implementing technical standards with regard to the precise format of insider lists and for updating insider lists in accordance with Regulation (EU) No 596/2014 of the European Parliament and of the Council,
- the Act of 29 July 2005 on Public Offerings, Conditions Governing the Introduction of Financial Instruments to Organised Trading, and Public Companies (consolidated text: Journal of Laws 2013, Item 1382).
In the Company’s view, the aforementioned document assures the confidentiality of delayed information. Confidentiality of information is also constantly monitored by the Company”.
Further to Article 17 (3) MAR, immediately following the publication of this report, the Company shall inform the Financial Supervision Authority that disclosure of the information was delayed and shall provide a written explanation of how the conditions were met.
Legal basis: Article 17 (1 and 4) MAR
